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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  LAW 


OF 


VOID  JUDICIAL  SALES 


THE  LEGAL  AND  EQUITABLE  RIGHTS  OF   PUR- 
CHASERS AT  VOID  JUDICIAL,  EXECUTION 
AND  PROBATE  SALES,  AND  THE 


CONSTITUTIONALITY  OF  SPECIAL 
LEGISLATION 

VALIDATING   VOID    SALES.  AND    AUTHORIZING    INVOLUN 
TARY  SALES  IN  TUE  ABSENCE  OF  JUDI- 
CIAL  PROCEEDINGS. 


FOURTH  EDITION. 

KEVISEl),  ENLAUGED  AND   HI50UGHT   DOWN   TO   DATE. 


BY  A.  C.  FREEMAN, 


Author  of   Ti-eatisea  on  '•  Judgments,'-    ''Executions,''    "Co-tenancy    and 
Pdrtiiion,''    Etc. 


ST.  LOUIS: 
CENTRAL  LAW  .JOURNAL  COMPANY. 

VM-2. 


Entered  according  to  Act  of  Congross  in  the  year  1877,  by 

A.  C.  FREEMAN, 
In  the  olHce  of  the  Librarian  of  Congress  at  Washington. 


Entered  according  to  Act  of  Congress  in  the  year  1886,  by 

A.  C.  FREEMAN, 
In  the  office  of  the  Librarian  of  Congress  at  Washington. 


Entered  according  to  Act  of  Congress  in  the  year  1890,  by 

A.  C.  FREEMAN, 
In  the  oHice  of  the  Librarian  of  Congress  at  Washington. 


Entei  cd  according  to  Act  of  Congress  in  the  year  1902,  by 

A.  C.  FREEMAN, 
In  the  office  of  the  Librarian  of  Congress  at  Washington. 


T 


St.  Lords,  Mo.,  Printed  by  Central  Law  Journal  Company, 


TABLE  OF  COxXTENTS. 


CHAPTER  I. 

PAGE 

Introductory       ........  1 

CHAPTER  II. 

Sabs  void  because  the  court  had  no  authority  to  enter  the  judg- 
ment, or  order  of  sale        ......  5 

CH.VPTER  III. 

Sales  void  because  of  errors  or  omissions  subsequent  to  the  judg- 
ment or  order  of  sale         ......  86 

CHAPTER  IV. 

Proceedings  after  the  sale     ......        136 

CHAPTER  V. 

The  legal  and  equitable  rights  of  purchasers  at  void  sales  .        160 

CHAPTER  VI. 
The  constitutionality  of  curative  statutes      ....        220 

CIIAl'TER  VI [. 

Constitutionality  of  special  statutes  authorizing  involuntary  sales        25S 


g  *  f*t  W^if^f* 


C'HAPTEK  T. 


iNri.'oDLC'Toin'. 


§  1.   Plan  and  Scope  of  tbe  Work — Sundry  Definitions. 

— We  propose,  in  the  following-  pag-cs,  to  direct  onr  atten- 
tion, and  that  of  our  readers,  to  void  execution  and  jiulicial 
-ales,  and  the  legal  and  eciuitulile  rights  of  purchasers 
thereat.  Having  considered  these  ([uestioiis,  we  shall  con- 
clude with  inquiries  concerniuir  the  constitutionalitv  of 
those  curative  acts,  and  that  class  of  spechd  legislation, 
attempting  either  to  validate  invalid  judicial  sales,  or  to 
authorize  involuntarv  sales,  in  the  absence  of  any  judicial 
proceedings  whatever.  In  the  terms  •■  judicial  and  execution 
sales,"  as  we  here  use  them,  are  embraced  all  sales  made  in 
pursuance  of  the  orders,  judgments  or  decrees  of  courts,  or 
to  obtain  satisfaction  of  such  orders,  judgments  or  decrees. 
Precisely  what  sales  can  accurately  be  denominated  ''judi- 
cial *■  is  not  very  well  settled.  Of  course  they  nuist  be  ihe 
result  of  judicial  proceedings,  and  the  order,  decree  or 
judgment  on  whi<h  they  are  based  mu>t  direct  the  sale  of 
the  i)r()perty  sold.  There  can  be  no  judicial  sale  exce{)t  on 
a  pre-existing  oi-der  of  sale.'  And  prol)ably  the  order  of 
sale,  is    not,  alone.  >ullicieiil    to  entitle  the    sale  to  be  called 

'  Minnesota  Co.  v.  St.  I'aiil  Co..  -J  Wall.  tUit. 

(1) 


§     1  ^()ll)    .lUDIClAI.    SALKS, 

ju<lu'ial.  Ill  a  Slate  whcro  an  adiiiiiiist rator'.N  .•-ale.  though 
mticle  bv  virtue  ot"  an  order  of  eonrt,  was  not  riMiuired  t() 
be  reported  to  the  court  nor  to  be  eonlirnied,  diidii'('  Stor\' 
held  it  not  to  be  a  judicial  sale.'  If.  howcNcr,  a  sale  is 
ordered  by  the  court,  is  conchu-ted  by  an  otficer  appointed 
by,  or  subject  to,  the  control  of  the  court,  and  reijuires  the 
approval  of  the  court  before  it  can  be  treated  as  final,  then 
it  is  clearly  a  judicial  sale.  Such  a  sale  is  un<|uestionab]y  a 
sale  by  the  court. '^  Possibly  we  have  erred  in  supposina'  that 
a  sale  cannot  properly  be  rewarded  as  judicial  unless  pre- 
viously authorized  by  a  court.  The  true  test  is.  that  it  must 
be  one  which  is,  in  c()nteni[)lation  of  law,  made  by  the  court, 
and  there  may  be  circumstances  when  sucli  is  the  case,thouiih 
there  is  no  pri'-existing  order  directiuu'  or  auth()ri/,ini>-  the 
sale,  as  where  the  |)roperty  is  in  the  liauds  of  a  receiver 
appointed  by  the  court  and  gi\en  power  by  law  to  mfd^e 
sales  thereof,''  or  of  an  executor  upon  ^vilom  a  power  of  sale 
is  conferred  by  the  will,  if  the  sale  nuist  be  report(Ml  to, 
and  confirmed  by  the  court. ^ 

Sales  made  in  proceedings  for  ])ai-tition  ai-e  undoul)tedly 
judicial;'^  so  are  sales  made  by  administrators  and  guardian^ 
under  the  practice  ])ursued  in  most  of  the  States.'^  Exe<aUion 
sales  are  not  jiulicial.'      They  must,  it  is  true,  be  sup{)()rte(l 

^  Smith  V.  Arnold.  5  ]M;ison,  42(J;  VlcGuinness  v.  AVLiulen.  Ui  J\.  I. 
558,  27  Am.  St.  Rep.  7GH. 

2  Forman  v.  Hunt,  '6  Dana,  (>21. 

3  Campbell  v.  Parker  (X.  J.  Ch.).  45  Atl.  Rep.  110. 
^  Warehime  v.  (Jraf.  83  Md.  98. 

■'*  Freemm  on  Co-tenancy  and  Partition,  sec.  548;  lliUton  v.  WiiliaiiLS. 
35  Ala.  503,  76  Am.  Dec.  -lUT :  Girard  t>.  Ins.  Co.  v.  F.iV:  .M.Banl<.  .".7  Pa. 
St.  388. 

8  Vandever  V.  Baker,  13  Pa.  St.  121:  Sackett  v.  Twining.  18  Pa.  St. 
191),  .57  Am.  Dec.  50'.);  Halleck  v.  0 ny,  9  Cal.  195,  70  Am.  Dee.  G-13; 
Hutton  V.  Williams.  35  Ala.  517,70  Am.  Dec.  297:  Moore  v.  Sbultz. 
13  Pa.  St.  98,  53  Am.  Dec.  440;  Lyncti  v.  Baxter,  4  Tex.  431.  51  Am. 
Dec.  735;  Mason  v.  Osgood.  64  X.  C.  407;  Xoland  v.  Barrett.  122  Mo. 
181.43  Am.  St.   Rep.   572:  Maul    v.   Hellman,  39  Xeb.  322. 

7  Griffith  V.  Fowler.  18  Vt.  394. 

2 


VOID    JUDICIAL    SALES.  §     1 

l)y  a  jiulginent,  decree  or  order.  But  the  judgment  i.s  not 
for  the  sale  of  any  specific  propert^^  It  is  only  for  the 
recovery  of  a  designated  sum  of  money.  The  court  gives 
no  directions,  and  can  give  none  concerning  what  property 
shall  be  levied  upon.  It  usually  has  no  control  over  the 
sale  bevond  setting  it  aside  for  non-compliance  with  the 
directions  of  the  statutes  of  the  State.  The  chief  differ- 
ences between  execution  and  judicial  sales  are  those:  the 
former  are  based  on  a  general  judgment  for  so  much  money, 
the  latter  on  an  order  to  sell  specific  property;  the  former 
are  conducted  by  an  officer  of  the  law  in  pursuance  of  tin 
directions  of  a  statute,  the  latter  are  made  by  the  agent  of 
a  court  in  pursuance  of  the  directions  of  the  court;  in  \\u- 
former  the  sheriff  is  the  vendor,  in  the  latter  the  court;  in 
the  former  the  sale  is  usually  complete  when  the  property 
is  struck  off  to  the  highest  bidder,  in  the  latter  it  must  be 
reported  to  and  api)roved  by  the  court. ^  But  our  present 
purpose  does  not  require  us  to  announce  any  tests  by  which 
to  determine  what  sales  are  judicial,  nor  to  separate  the 
diiferent  classes  of  judicial  sales  from  one  another.  \\ C 
shall  assume  that  judicial  sales  embrace:  1st,  those  made 
in  chancery;  2d,  those  made  by  executors,  a<lministrat(»rs 
and  guardians,  when  actintr  bv,  virtue  of  authority  derixcd 
from  orders  of  sale  obtained  in  judicial  ))roceedings ;  and. 
'6i\,  all  other  cases  where  property  is  sold  undei-  an  order 
or  decree  of  court  designating  such  property  and  authori/.- 
ing  its  sale. 

Void  sales,  whether  execution  or  judicial,  may,  for  eon- 
venience  of  treatment,  be  divided  into  two  great  clashes: 
1st,  those  which  are  void  because  the  court  had  no  authoiity 

'Andrews  v.  Scotton.  2  Hi.iud.  ti:^(i:  Sehindcl  v.  K«'i-dy.  4:^  MW.  (17. 
A  sale  made  by  assignees  actinj;  under  an  assignment  for  l  Ue  l>enilit 
of  (ireditors,  is,  in  Ohio,  a  judicial  sale,  because  the  proceeding-;  and 
sale  are,  by  the  statute  of  that  State,  required,  to  In-  condiK^teil  under 
the  supervision  and  subject  to  the  contirmation  of  the  probate  court. 
Dresbaek  v.  Stein,  41  Ohio  St.  70. 


vj     1  \()II)    .IlDIClAf-    SAI^KS. 

lo  cnlci-  ihc  jiulgiiu'iit  or  order  of  sale;  2d,  llio.se_wliich, 
ihoiiuh  l)ased  on  a  valid  judunicnt  or  order  of  sale,  are 
invalid  from  sonic  vice  in  the  subsc(|uent  proceeding,  or 
because  the  judi>nient  or  order  has  lost  its  original  force^bj 
appeaT,vl:ipsc  of  time,. satisfaction, [or  some  other  adequate 
^aus£>'  The  word  void,  though  apparently  free  from  ambi- 
guity, is  employed  in  various  senses.  Accurately  speaking, 
a  thing  is  not  void  unless  it  has  no  force  or  effect  whatever. 
"A  conveyance  cannot  be  said  to  be  utterly  void  unless  it 
is  of  no  effect  whatsoever,  and  is  incapable  of  confirmation 
or  ratification."^  "Another  test  of  a  void  act  or  deed  is, 
that  every  stranger  niayliTEe  advantage  of  it,  but  not  of  a 
\m^lable  one]  Again,  a  thing  may  be  void  in  several 
degrees:  Ist,  void,  so  as  if  never  done,  to  all  purposes, 
so  that  all  persons  may  take  advantage  thereof:  2d,  void  to 
some  })urposes  only;  od,  so  void  by  operation  of  law  that 
he  that  will  have  the  benefit  of  it  may  make  it  good."  ^  In 
the  terms  "void  sales,"  as  employed  in  this  work,  we 
inclnde  all  those  sales  which,  as  against  the  original  pur- 
chaser, may,  Avithout  any  jiroceedings  to  set  them  aside,  be 
treated  as  not  transferring  the  title  of  the  property  assumed 
to  be  sold.  These  sales,  it  will  be  shown,  may  be  ratified 
or  contirmed.  Many  of  them  give  rise  to  important  equita- 
l)le  rights  in  favor  of  the  original  purchaser  or  his  grantee. 
Some  of  them,  while  conferring  neither  legal  nor  ecjuitable 
rights  on  the  original  purchaser,  become,  in  the  hands  of 
his  innocent  vendees  for  value,  in  good  faith  and  without 
notice,  valid  both  at  law  and  in  equit3\ 

1  Boyd  V.  Blankman.  29  Cal.  3.5,  87  Am.  Dec.  746. 

•  Aaderson  v.  Roberts,  IS  JoliQS.  .527.  9  Am.  Dec.  235. 


\OID    .IIDKIAL    SALES. 


CHAPTER   ir. 


SALKS     NOIL)     HKCAl  SK     TIIK     COlin'     IIAU     NO     AlTHOinT^       TO 
ENTKIt    Tin:    .HDcniKNT,   OK    ORDER    OF    SALE. 

f^EOTION. 

2.    Jurisdiction,  and  the  Effect  of  a  Want  of. 
:^.     Kinds  and  Sources  of  Jurisdiction. 

4.  Instances  of  Want  of  Jurisdiction  of  Probate  Courts   over   the 

Subject-matter. 
4a.  Judgments  and  Orders  in  Excess  of  Jurisdiction. 

5.  Means  of  Acquiring  Jurisdiction. 

6.  Cases  in  wliicb  the  Judge  is  Disqualitied  from  Acting. 

7.  Suspension  or  Loss  of  Jurisdiction. 

7a.  Suspension  or  Loss  of  Ilight  to  Enforce  a  .Judgment  or  Order. 
S.     General  Principles  Governing  (Questions  of  Jurisdiction. 

OKI>KI{.S    or    SAI.K    IN    I-UOBATK.    AND    HOW     A  T  ri  lOItlTV    TO    MAKK    MIST 

1!K    OI'.TAINKD. 

'.».     Wlien  Sales  may  be  Made  without  any  License  of  Court. 

'.'<t.  What  Property  may  be  Subject  to  an  l^ffeclive  Administrator's  or 

?2xecutor's  Sale. 
!)//.  '{"he   Time   within    wliidi    Uio    Petition    may  be   I'rescntcd  and 

I'roperly  Granted. 

10.  Petition  for  License  must  bo  by  Person  Competent  to  Present  it. 

11.  Sutlicient  I'elition  is  Indispen.'«al)le:  what  Petitions  are  Siitlici<'nt. 

12.  Statutes  Designating  what  I'etition  mu.-t  Contain. 

PL     i'etitions   for    Sales   Libeiall>    < 'onslrued  :  — lieferriug   tnOihei' 

Pa])ers. 
1  L     \ot  Fatal  that  I'etition  is  not.  in  faet.  'i'nie. 
l.">.     Notice  of  .\ppiication  to  Sell,  (Jases  lioidini;  it  rnnec(->;u y. 


§    2  A'Oll)    .HDICIAI.    SALES. 

K;.     Notic«'  of  Application  to  Sell,  Cases  Holding  it  Necessary. 

17.  Notice  of  Application:  Service  on  Minor  not  to  be  Waived  nor 

Dispensed  with. 

18.  Notice  of  Application  must  be  Given  in  the  Manner  Prescribed 

by  Law. 

19.  Notice  of  A|)plication  must  be  Given  for  the  Time  Prescribed  by 

Law. 
19a.  Irregularities  Occurring  after  Giving  Notice  of  the  Application. 

20.  The  License,  or  Order  to  Sell,  and  its  Effect  as  an  Adjudication. 

§  2.  The  Effect  of  Want  of  Jurisdiction. — A  void 
judoinent,  order  or  decree,  in  whatever  tribunul  it  may  be 
entered,  is,  in  leoul  eifect,  nothing.  "All  acts  i)erfornied 
under  it,  and  all  claims  flowing  out  of  it,  are  void."  ^ 
Hence,  ti  sale,  based  on  such  a  judgment,  has  no  founda- 
tion in  law.  It  must  certainly  fall.-  Judicial  proceedings 
are  void  when  the  court,  wherein  they  take  place,  is  acting 
without  jurisdiction.  "The  power  to  hear  and  determine 
a  cause  is  jurisdiction;  it  is  coram  judice  whenever  a  cause 
is  presented  Avhich  l)rings  this  power  into  action;  if  the 
petitioner  states  such  a  case  in  his  petition,  that  on  a  de- 
murrer the  court  woidd  render  judgment  in  his  favor,  it  is 

1  Freeman  on  Judgments,  sec.  117;  White  v.  Foote.  L.  &  M.  Co.,  29 
W.  Ya.  385.  G  Am.  St.  Rep.  650;  Moyer  v.  Bucks,  2  Ind.  App.  571,  50 
Am.  St.  Rep.  251;  Cox  v.  Boyoe,  152  Mo.  576,  75  Am.  St.  Rep.  483; 
Stafford  v.  Gallops.  123  N.  C.  19.  68  Am.  St.  Rep.  815;  Savage  v. 
Sternberg,  19  Wash.  679,  67  Am.  St.  Rep.  751. 

-  Freeman  on  Executions,  sec.  16,  note  2;  Gray  v.  Hawes.  8  Cal.  562; 
Gunz  V.  Heffner.  33  Minn.  215,  22  N.  W.  Rep.  386;  Shaefer  v.  Gates,  2 
B.  Hon.  4,53.  38  Am.  Dec.  l54;  Cravens  v.  Moore,  61  Mo.  178;  Barber  v. 
Morris.  37  Minn.  194,  5  Am.  St.  Rep.  83(5;  Olson  v.  Nunnally,  47  Kan. 
391,27  Am.  St.  Rep.  296;  St.  Louis,  etc.,  Ry.  Co.  v.  Lowder,  138  Mo.  533, 
60  Am.  St.  Rep.  565.  A  sale  under  a  void  judgment  does  not  entitle  the 
purchaser  to  the  benefit  of  a  statute  requiring  actions  to  be  brought 
►•within  five  years,  where  the  defendant  claims  title  to  the  land  in 
question,  by  or  through  some  deed  made  upon  a  sale  thereof  by  an 
executor,  administrator  or  guardian,  or  by  a  sheriff  or  other  proper 
ministerial  otlicer  under  the  order,  judgment,  decree  or  process  of  a 
court  or  legal  tribunal  of  competent  jurisdiction  within  this  State." 
Miller  v.  Babcock.  29  Mich.  526. 


^<t||)    -HDICIAL    SALKiS.  ■$     I 

an  iiii<l()ul>i('(l  i-asc  of  jurisdiction."'  ^  ••  It  is.  in  truth,  the 
jiowcr  to  do  l>oth  or  oitlicr — to  hear  without  deterinhihig, 
or  to  (U^crniine  without  licaring."  -  'vlurisdietion  may  be 
dftiued  to  l)e  the  right  to  adjudicate  eonrerning  the  subject- 
matter  in  a  Liiven  case.  To  constitute  this  there  are  three 
csx'utials:  1.  The  court  must  have  cognizance  of  the  chiss 
(if  cases  to  which  tlie  (Uic  adjudged  beh)ngs.  2.  The  proper 
parties  must  ))e  present  :  and  8.  The  point  decided  must  be 
in  substance  and  effect  within  the  issue.'"  '^  It  must  be  con- 
>tantlv  renuMnbered  that  jurisdiction  is  indispensable  to  the 
vaii<lity  of  all  judicial  proceedings;  that  if  the  proceedings 
taken  to  obtain  jurisdiction  are  radically  defective,  all  sub- 
>e(|uent  >teps  are  unavailing,  however  regular  they  may  be. 
Thus,  though  the  ])roceedings  in  a  prol)ate  court  to  obtain 
an  order  of  -ale.  and  :dso  the  proceedings  subsecjuent  to 
the  order,  are  all  i)erfectly  regular,  yet  the  sale  is  utterly 
void,  if  it  can  be  shown  that  there  was  no  valid  grant  of  ad- 
ministration, because  the  court  had  no  jurisdiction  to 
grant  it.^ 

It  ma\  also  Ix-  -liow  n  that  an  appar<'nl  giant  of  adminis- 
tration \\a-  not  the  act  of  the  court  or  judge,  but  of  the 
clerk  or  of  -ome  other  i)erson,  who  used  blanks  signed  ])V 
the  judge.  Judicial  authority  cannot  be  delegated;  and, 
although  the  judge  left  signed  blanks  with  the  clerk,  in- 
tending for  the  latter  to  till  them  u|).  and  issue  or  enter 
them  as  the  act  of  the  court,  still  the  clerk's  act  is  not  judi- 
cial, and  his  grant  of  administration  is  not  l)inding  as  a 
judicial  act . ' 

'  Initcd  Stiilos  V.  Anffldtido.  li  IN't.  70!). 

-  K.f  \«irii-  I'.ennett.  44  (  iil.  8S. 

"  Mope  V.  r.liiir.  10.')  Mo.  S.").  24  Am.  St.  Rcp-  ^^''''i:  .Mnnday  v.  Vail,  :{4 
\.  •\.  \,\\\s.  \ll:  l-ieeiiian  on  .liirljiiiients,  <j  l"20r. 

'  Simiiiicr  V.  I'inker,  7  Mass.  7'.t:  Uniinown  Heirs  v.  I>;ii<«'r.  2:5  111.  4'.l(l; 
.■^inilli  V.  Kicc.  11  Ma<s.  .•)(I7 :  Cliuse  v.  Koss.  3<)  Wis.  2()7;  Withers  v.  Pnt- 
tfison.  27  Ifx.  ■">ol.  sc.  Ami.  Dec.  (i4H;  Ex  }i<n-(«  IJiilicr,  2  I.eifjti,  71i) ; 
Miller  v.  .Jones.  2*;  Ala.  247.     (See  sec.  10.) 

'  i:odeii;ras  v.  Kast  IJiver  Sav.  Inst..  7«  N.  Y.  :!iil.  32  Am.  Kop.  30'J. 


§     ;>  ^OlI)    .irDlClAI,    SALKS. 

Tho  court  max.  in  the  paiticular  inslancc  in  which  it  has 
acted.  ])r()ccc(l  without  authorit}'.  If  so,  its  action  is  extra- 
judicial and  cannot  support  ii  sale  based  upon  it.  Ilencc, 
if  a  i)artiti()n  sale  is  made  in  an  action  in  wiiich  service  of 
process  was  omitted  as  to  some  of  the  co-tenants,  or  in  a 
case  where  there  were  persons  owning  estates  in  remainder, 
and  l)v  the  local  statutes  the  court  had  no  authority  under 
such  circumsta)ices  to  order  or  confirm  a  sale,  the  sale  in 
the  case  first  su})poscd  cannot  devest  the  interest  of  the  co- 
tenants  who  were  not  served  with  process,^  while  in  tlie 
latter  case  the  whole  proceedinos  are  void  f(n-  want  of  juris- 
diction over  the  subject-matter."'^ 

§  o.  Kinds  and  Sources  of  Jurisdiction. — "Jurisdic- 
tion is  conferred  upon  courts  by  the  constitution  and  laws 
of  the  country  in  which  they  are  situate,  authorizing  them 
to  hear  and  determine  causes  between  parties,  and  to  carry 
their  judgments  into  effect."  '^  The  })()wer  to  hear  a  i)ar- 
ticular  class  of  cases,  or  to  determine  controversies  of  a 
specified  character,  is  called  jurisdiction  over  the  subject- 
matter.  This  jurisdiction  is  conferred  b}^  the  "authority 
which  organizes  the  court,  and  it  is  to  be  sought  for  in  the 
general  nature  of  its  powers,  or  in  authority  specially  con- 
ferred by  statute.  If  the  order  or  judgment  on  which  a 
sale  was  made,  was  one  resulting  from  a  controversy  which 
the  court  had  in  no  circumstances  an}'  power  to  determine, 
there  was  an  absence  of  jurisdiction  over  the  subject-nuitter, 
and  the  sale  is  incurably  void."'  *  When  jurisdiction  is  at- 
tem))ted  to  be  conferred  by  statute,  it  is,  of  course,  essen- 
tial that  the  enactment  be  within  the  constitutional  authority 
of  the  legislature.  If  not,  a  judgment  rendered  in  the  ex- 
ercise of  the  supposed  jurisdiction  is  void,  and  cannot  l)e 

1  Childs  V.  Harpman,  72  Ga.  791. 

2  Young's  Admr.  v.  Katbbone,  IG  N.  J.  Eq.  22-1.  S4  Am.  Dec.  L')!. 
''^  Freeman  on  Judgments,  sec.  119. 

■*  Freeman  on  Judgments,  see.  120;  Iliggins  v.  Bordages,  88  Tex.  458, 
.')3  Am.  Ht.  Kep.  770. 

8 


VOID    .HDICIAL    SALES.  i;    .\ 

v:ilid;iU'(l  l)y  any  subsecjuent  legislative  action.'  In  addi- 
tion to  jurisdiction  over  the  subject-matter,  it  is  also  indis- 
ixnisable  that  the  court  should  have  jurisdiction  over  the 
l)er>on  or  thing  against  which  its  judgment  operates.  Juris- 
diction over  a  subject-matter  must  be  conferred  by  law;-' 
jurisdiction  over  a  person  may  be  conferred  by  his  consent. 
If  jurisdiction  over  a  person  is  not  conferred  by  his  con- 
sent, or  obtained  in  the  manner  designated  by  law,  the 
judgment  against  him  is  void,  and  cannot  support  any  sale 
o:  his  property.-^ 

AVhere  jurisdiction  has  not  been  obtained  by  consent,  in- 
(|uiry  must  l)e  instituted  for  the  })ur})ose  of  ascertaining 
Nvhcthcr  the  court  could  take  jurisdiction  without  such 
assent.  The  right  to  take  such  jurisdiction  nnist  be  con- 
ferred by  some  valid  law,  which  must  provide  some  process 
or  other  ir.ode  of  notice  to  the  defendant,  and  some  method 
by  which  it  must  be  served  upon  or  given  to  him.  The 
service  of  process  in  a  mode  not  sanctioned  \>y  law  cannot 
give  a  court  jurisdiction  over  the  defendant,  however  well 
calculated  the  process  or  the  service  may  be  to  inform  him 
of  the  proceeding  against  him.  There  cannot,  we  conceive, 
be  x\\\\  JHilfjinenl  in  personam  when  the  person  named  as  a 
defendant,  whether  a  natural  or' an  artificial  person,  has  no 
existence.  It  is  true  that  if  he  has  been  a  natural  person 
he  may  have  left  heirs,  and  if  an  artificial  person,  stock- 
holders or  others  entitled  to  share  in  the  distribution  of  the 
assets,  but  neither,  in  our  ()|)inion,  can  be  esto})pe(l  from 
-liowing  thai  when  the  adion  was  commenccMl  th(>  defend- 
ant, if  a  natural  persc^n,  was  dead,'  or  if  a  corporation  had 
been  dissolved,"'  and  hence  that  the  judgment   is  absolutely 

'  III  re  Chri.stensen.  17  Utjih.  :5]2.  70  Am.  St.  Rep.  794. 

'•*  Dakin  v.  heining.  0  I'ai.  '.i."). 

•'■  (Jrt'jit  W.  M.  (  0.  V.  Woodman  of  A.  .M.  Co..  12  Colo.  4(i,  V.\  Am.  St. 
Hep.  20-4 ;  Moyer  v.  JJucks,  2  Ind.  App.  571,  50  Am.  St.  Kep.  251. 

<  Roifl  V.  lloltiKifi,  127  Ma.ss.  320;  Shea  V.  Shea,  151  !\Io.  5:»'.l,  77  Am. 
St.  Kf|).  77'.*:  1  reeman  on  Judgments,  see.  15:^. 

•''  Lift-  Association  v.  Ka.*.«etl,  102  III.  :5I5:  District   nf   day   \.  Di-iiict 


§    3  VOID    JUDICIAL     SALKS. 

void,  bociiusc  the  court  iievcr  had  jurisdiction  over  the  sup- 
posed defenchiui. 

The  statute  purporting  to  authorize  the  service  of  proc- 
ess may  not  be  conclusive  of  the  (juestion,  for  no  State  or 
nation  has  iiny  authority  to  legislate  with  respect  to  persons 
or  property  not  within  its  jurisdiction. ^  If  the  defendant 
was  not  a  resident  of  the  State  or  nation  whose  tribunals 
pronounced  judgment  against  hiin,  and  was  not  served  with 
process  within  its  territory,  and  did  not  voluntarily  appear 
and  submit  himself  to  their  jurisdiction,  such  judgment 
cannot  operate  against  him  in  j^er^onam,  whether  the  serv- 
ice of  process  was  actual  or  constructive.-  In  such  cases 
the  vice  of  the  proceedings  is  not  dependent  on  the  mode 
of  service  of  the  process  of  the  court,  but  upon  the  fact 
that  the  court  had  no  power  to  require  the  defendant  to 
appear  before  it  and  submit  his  rights  to  its  decision. 
Hence,  in  a  proceeding  against  a  non-resident  infant  to 
cancel  a  contract,  the  court  has  no  authority  over  him.  It 
cannot  make  service  of  process  on  him  out  of  the  State, 
and  from  such  service  acquire  authority  to  appoint  a 
guardian  ad  litem  to  appear  for  him.  A  judgment  sup- 
ported by  such  service  and  the  api)ointment  and  appearance 
of  such  guardian  is  void.^  Courts  having  jurisdiction  over 
the  estates  of  decedents  are  necessarily  restricted  to  prop- 
erty within  the  State,  or  at  least  to  property  belonging  to 

of  Buchanan,  68  Iowa,  ISS;  Merrill  v.  President,  etc.,  31  Me.  57.  50  Am. 
Dec.  640;  Sturge.^  v.  Vanderbilt.  73  N.  Y.  384. 

1  Sturgis  V.  Fay,  16  Ind.  429.  79  Am.  Dec.  440;  Brown  v.  Campbell, 
100  Cal.  635,  38  Am.  St.  Rep.  314;  Griffith  v.  Milwaukee  H.  Co.,  92  Iowa, 
634,  .54  Am.  St.  Rep.  .573;  Willamette  K.  E.  Co.  v.  Hendrix,  28  Or. 
485,  52  Am.  St.  Rep.  800;  Wilson  v.  St.  Louis,  etc.,  Co.,  108  Mo.  588,  32 
Am.  St.  Rep.  24. 

2  Pennoyer  v.  Xeff,  95  U.  S.  722;  Belcher  v.  Chamber?.  .53  Cal.  636; 
Louisville,  etc.,  R.  R.  Co.  v.  Xash,  118  Ala.  477.  72  Am.  St.  Rep.  181 ; 
Hinton  v.  Penn  M.  L.  I.  Co.,  126  N.  C.  IS,  78  Am.  St.  Rep.  636; 
McCreery  v.  Davis,  44  S.  C.  195,  51  Am.  St.  Rep.  794;  Davis  v.  Wakelee, 
154  U.  S.  685. 

3  Insurance  Company  v.  Bangs,  103  U.  S.  435. 

10 


\0\\)    .IIDKIAI.     SAI.KS. 


decedent^  who,  at  llic  time  of  l  licir  (icalli.  wxtc  rrsidcMits 
or  citizfir^  of  tlic  Stale.  A  uraiit  (d"  adiiiiiii>trat ioii  of  the 
estate  of  a  iioii-roidciit  decedent  lea\  iiio-  no  estate  within 
the  State  is  xoitl.^  The  courts  of  everv  nation,  howevei-, 
have  jiui>dietion  over  all  |)ro])ertv  within  it>  territorial 
liniits.  irrespective  of  the  (•itizen>ldi)  or  residence  of  its 
owners,  and  mav  exercise  tiii-  jiirisdi<-tion  hy  proceediiiirs 
i)i  Villi  aLiain>t  -ucii  ]»roj)erty.  Perhaps  the  proeeediny: 
will  l)c  treated  as  ///  rem  in  every  instance  in  which  the 
))ro|)erly  is  seized  or  levied  upon  under  ])rocess  issued  in 
the  <-as('.  ihouuh  such  seizure  or  le\y  is  professedly  for  the 
puri>ose  of  creatini:'  a  lien.  It  has,  therefore,  been  held 
that  if  I'cal  estate  of  a  non-resident  defendant  is  attached, 
a  judiiinent  against  him  in  the  same  action,  founded  on 
constructive!  sei'vice  of  process,  will  >upport  a  sale  of  such 
real  estate. - 

When  the  defendant  is  a  non-resi<h'nt  and  his  prii|)erl\' 
is  atta<*lied  it  is  usuaih'  neccs-ar\  ,  for  liie  })urpose  of  ol)- 
taining  .-uch  jurisdiction  as  will  entitle  the  couit  to  enter  a 
judiTinent  enforcible  against  the  ))r()perty,  to  serve  sum- 
mons, actual  or  const  ruci  Inc.  in  the  mode  designated  bv 
the  statute.-^  and  also  that  there  be  a  valid  cause  of  attach- 
ment, and  that  all  the  proceedings  be  taken  which  are 
essential  lo  llie  is>ue  and  levy  of  the  writ.  A\'e  shall  not 
iiere  enh-r  ujioii  an\'  con-iilciat ion  of  the  (|uc^li()n  of  what 
is  a  sufticient  constructi\e  or  other  ser\ice  of  summons  or 
like  proces-  when  the  |)erson  served  is  beyond  the  limits  of 
the  State.      ll   i-    -utliciciit     I'm'    our    pi'e>cnt   purpose  to  sa\' 


'  Malloy  V.  r.iirlinifton  i^  M .  I.'.('o.,  ")i5  K.in.  .").") 7 :  Morse  v.  Miitu.il. 
etc.,  As~n..  t.">  I.M.  Ann.  I'M:  Fletcher  v.  McAitlinr.  <)8  Fed.  Hep.  H.").  \n 
<).  C.  A.  -J-.M.  :i7  1.  ^.  App.  tW;  l'eopIe".s  S.  P..  v.  Wilcox.  15  R.  I.  258, 
•_'  Am.  St.  Itep.  S'.M. 

-'  .Vnierson  v.  Goff.  11  i.\\.  115.  1  Am.  St.  Ifcp.iJt:  l''ieeni:ui  v.  .Alder- 
«()ti,  11!)  1.  S.  285:  O'Siillivan  v.  OverUHi,  ."i»i  (Unn.  Wl:  lliiri.s  v. 
I)  iii^lieity.  7t  'I'ex.  1.  15  Am.  St.  U<'|j.  812. 

'  Drake  v.  Hale.  As  Mo.  MV,:  JMossom  v.  K.-les.  s)  N.  ^  .  (;il:  Walker 
\.  (.'ottrell,  •;  r.ax.  257:   l,'il<  y  v.  Nidiols.  1  Heisk.   17. 

II 


§     .*)  NOll)    .UDICIAL    SAI.KS. 

that,  though  ^uch  service  i.s  in  all  respects  that  required  by 
statute,  it  is  further  essential  that  jurisdiction  over  the 
])r()))er(v  l)c  ac(|iiire(l  by  attachment.  A  writ  issued  when 
the  plaintiff  is  net  entitled  to  it  cannot  support  a  judgment 
founded  u])on  it.  It  is  not  sutiicicnt  that  the  plaintiff  tiled 
the  retjuisite  attidavit  for  a  writ  and  under  it  attached  the 
property,  if,  upon  the  trial,  it  appears  that,  though  he  had 
u  cause  of  action,  it  was  not  one  upon  which  he  Avas  en- 
titled to  an  attachment.^  (Jenerally,  where  jurisdiction  i.s 
dependent  upon  an  attachment,  all  the  statutory  provisions 
nmst  be  strictly  j^ursued,  and  the  facts  giving  jurisdiction 
must  appear  on  the  face  of  the  record.^  If  an  afhdavit  is 
required  it  is  deemed  an  essential  foundation  u})()n  which 
the  judgment  of  the  court  must  rest,  and  if  no  affidavit  is 
nnide  or  tiled,  or  that  filed  is  wholly  inadequate,  the  juris- 
diction cannot  be  sustained.''  kStill  there  are  cases  in  which 
affidavits,  though  not  sufficient  if  attacked  by  motic»n  to 
vacate  the  writ,  are  not  so  wholly  defective  as  to  subject 
a  judgment  based  thereon  to  collateral  attack.* 

It  must  not  be  forgotten  that,  though  by  the  service  of 
process  against  a  non-resident  a  judgment  may  be  entered 
against  him  personal  in  form,  which  will  support  the  sale  of 

1  Mndge  V.  Steinhart,  78  Cal.  34,  12  Am.  St.  Rep.  17;  German  N. 
Bank  v.  Ivautter,  r)5  Xeb.  108,  70  Am.  St.  Rep.  371.  In  this  case  it  was- 
held  in  a  collateral  attack  on  the  judgment,  that  it  might  be  shown  that 
the  affidavit  for  the  attachment  was  false. 

^  Haywood  V.  ('ollins.  (50  111.  328;  Thatcher  v.  Powell,  (>  AVheat.   ll'.K 

•^  Goss  v.  Board  of  Connnrs.,  4  Colo.  4t>8;  De  Leon  v.  Hiller.  77  Ga. 
740;  ]Manley  v.  Headley.  10  Ivan.  88;  Dickinson  v.  ( 'owley.  15  Kan.  2(i9; 
Cantrell  v.  Letwinger,  44  Miss.  437:  Bray  v.  iSIcCleery,  55  Mo.  128; 
Hargadine  v.  Van  Horn,  72  Mo.  370;  Burnett  v.  McCleery,  78  Mo.  (576; 
Duxbury  v.  Dohle,  78  Minn.  427,  79  Am.  St.  Rep.  408;  Staples  v.  Fair- 
child,  3  N.  Y.41  ;  Birchall  V.Griggs.  4  N.  D.  305,  50  Am.  St.  Rep.  G54; 
Severn  v.  Geise,  G  X.  1).  523;  Stewart  v.  Mitchell,  lOileisk.  488;  Tacoma 
G.  Co.  v.  Drabam,  8  AVash.  263,  40  Am.  St.  Rep.  907;  Miller  v.  White.. 
46  W.  Va.  67,  76  Am.  St.  Rep.  791. 

4  Hogue  V.  Corbett.  156  111.  540,  47  Am.  St.  Rep.  232;  Miller  v.  White, 
46  W.  Va.  67,  76  Am.  St.  Rep.  791. 

12 


^()lI>    .IIDK  lAL    SALKS.  §     3 

lii.s  })roperty  when  preceded  by  its  attachment,  or,  when  in 
foreclosure  of  a  Hen  thereon,  such  judgment  is  not  trul^'  in 
permyxam,  and  hence  cannot  support  a  sale  of  property  not 
subject  to  the  attachment  or  other  lien,^  Therefore,  if  a 
deficiency  remains  after  a  sale  under  a  judgment  of  fore- 
closure, based  upon  ser\ice  of  summons  by  publication  or 
otherwise  u[)on  [)ersons  out  of  the  State,  there  is  no 
jiuthority  for  docketing  it  as  a  personal  judgment  against 
the  defendant,  and  if  so  docketed  it,  as  well  as  every  writ 
imd  sale  based  thereon,  is  void.'  The  same  principle  is  appli- 
cable to  decrees  for  the  payment  of  alimony  or  maintenance 
rendered  in  a  suit  against  a  non-resident  who  has  not  been 
served  with  process  within  the  State,  nor  voluntaril}'^ 
appeared.  In  so  far  as  a  suit  affects  the  status  of  the 
parties  as  husband  and  wife  by  decreeing  a  dissolution  of 
their  marital  relations,  it  is  in  rem,  and  the  fact  that  the 
<lefendant  is  not  within  the  territorial  jurisdiction  of  the 
court  is  not  necessarily  an  obstacle  to  proceeding  to  final 
judgment,  but  the  judgment  cannot  impose  any  personal 
liability  justifying  the  issuing  of  an  execution  and  the  levy 
.and  sale  of  pro[)erty  thereunder.-^  \'arious  other  suits  or 
actions  may  be  prosecutetl  against  non-residents  to  the 
extent  of  procuring  judgments  or  decrees  wdiich  are  bind- 
ing upon  their  property  rights,  as,  for  instance,  suits  to 
i^letermine  conflicting  claims  of  title  or  actions  of  trespass 
to  try  title,  but  where  the  defendant  has  not  api)eared 
JJicrein,    lU)   judgment    can   be  recovered    against     him    for 


'  Kxchange  Bank  v.  Clernent,  W.)  Ala.  -280;  C'erdabac  v.  Strong,  07 
Misg.  700;  Kasttuan  v.  De:irborn.  03  X.  H.  3(>(;. 

^IWiimberK  v.  Bircb,  'M  Cal.  41(i,  37  Am.  St.  Kep.  (17:  Latta  v. 
Tiitton.  122  Cal.  27!t.  (is  Am.  St.  Kep.  30;  Williams  v.  FoUelt.  17Colo. 
54. 

■■'  J>ft  r.a  Montanya  v.  J)e  La  Montauya.  112  L'al.  109,  '>6  Am.  St.  Kep. 
ICS;  Hervey  v.  Uervey,  50  X.  J.  Eq.  175;  Rigney  v.  Rigney,  127  N.  V. 
408,  24  Am.  St.  Rep.  402;  Doerr  v.  Korsythe.  r.O  Ohio  St.  72G,  40  Am. 
St.  Rep.  703. 

13 


§3  \  oil)    .11    1)1(1  AL    SALKS. 

costs  uoi  for  aiiv  ol  her  matter  wliicli  will  support  an  execu- 
tion or  other  sale  in  satisfaction  thereof.' 

('(^nsidered  in  connection  with  execut  ion  and  jndicial  s;iles 
it  is  always  necessarv,  unless  the  j)r()ceedin<2;  is  in  ma,  for 
an  intendinii'  [)urchasert()  in(|uire  who  are  the  parties  liavintr 
title  to,  interests  in.  or  liens  njjon  the  property,  and  have  they 
heen  hrouii'ht  within  the  jurisdiction  of  the  court,  so  that 
its  judi>inent,  decree,  or  order  directing  or  authori/ini;  the 
sale  of  the  property  is  binding  upon  them  to  the  extent  that 
its  sale  nutst  transfer  their  title,  interest,  and  lien,  or  esto}) 
them  from  asserting  it  against  him,  To  so  bring  them 
within  the  jurisdiction  of  the  court,  it  is  essential  either 
that  they  ha\e  Nohintary  ai)})eared  in  the  action  or  that  proc- 
ess has  issued  against  them  and  been  served  u})on  them  in 
conformity  to  the  law.-  and  whether  it  h;is  been  so  issued 
and  ser\ cd  nuist  be  ascertained  from  an  examination  of  the 
process  and  the  retnrn  of  ser\  ice  thereon,  or  the  jurisdic- 
tional statements  or  recitals  found  in  the  record,  bnt  may 
he  presumed,  if  the  court  is  of  general  jurisdiction,  if  noth- 
ing inconsistent  therewith  appears  from  such  return  and 
record.  It  is  further  essential  to  in(|uiro  whether  all  these 
parties  have  been  ])rought  before  the  court  in  the  ca[)ac- 
itv  in  which  they  ;lre  entitled  to  or  claim  some  estate, 
hen.  or  interest.  ••  K\ery  })erson  nuiy  at  different  times  or 
at  the  same  time  occnpy  different  relations,  act  in  different 
capacities,  aiul  represent  separate  and  ))erha])s  antagonistic 
interests.  Il  is  a,  rule,  both  of  the  ci\il  and  of  the  common 
h'lw,  that  a  i)arty  acting  in  one  i-ight  can  ninther  be  benetited 
ror  injured  by  a  judgment  for  or  against  him  when  acting  in 
some  other  right.""  '  Hence,  if  tme  has  an  interest  in  prop- 
ertv  in  his  own  right,  he  nuiy  still  assert  it  if  niude  a  I'Mi'ty 

'  Hardy  v.  Beatty.  84  Tex.  :)(i2.  :^1  Am.  St.  Rep.  80. 

2  l)e  I>a  Montanya  v.  De  I>a  :Slontanya,  112  Cal.  101,  5G  Aiu.  St.  Rep. 
Ki.");  Jewett  V.  Iowa  L.  Co..  (U  Minn.  531,  58  Am.  St.  IJep.  555;  i:van-: 
V.  Johnson,  31)  W.  Va.  2".i'.».  45  Am.  St.  Rep.  012. 

•■'  I'^reeman  on  .lndgment.s,  §  15(j. 

14 


VOID    JUDICIAL    SALES.  §    4 

to  an  action  only  in  a  representative  capacitv,  or  if  interested 
in  a  representative  capacity  may  still  assert  it  in  such  capac 
ity  if  made  a  i)arty  to  an  action  in  his  own  riaht.^ 

§  4.  lustances  of  Want  of  Jurisdiction  over  the  Sub- 
ject-matter aie  found  more  fre(|uently  \n  proOale  procecd- 
iuffs  than  elsewhere.  If  the  statute  of  a  State,  governing 
the  settlement  and  distribution  of  the  estates  of  deceased 
})ersons,'  makes  no  provision  concerning  the  estates  of  per- 
sons who  died  prior  to  the  passage  of  such  statute  then  an 
attempt  to  administer  on  one  of  the  last  named  estates  is  a 
usurpation  of  authority  over  a  suhject-matter  not  within 
the  jurisdiction  of  the  court,  and  the  proceedings  are,  there- 
fore, invalid."-  So,  if  a  probate  court  should  make  an  order 
for  the  Kale  of  pro{)erty  situate  in  a  State  other  than  the 
one  in  which  the  order  is  made,  this  would  also  be  an 
assumption  of  authority  over  a  subject-matter  not  within 
the  jurisdiction  of  the  court,  and  would  be  \«)id.'  This 
rule  has  been  held  to  be  a[)i)licablc  even  where  j)ersonal 
projjcrly.  though  in  anoth(n'  State  at  the  death  of  its  owner, 
was  sul)sr(|ii('iitly  l)rought  within  the  State  where  the  order 
was  mad«'.'  Courts  of  prol)ate  have  no  power  to  grant 
lettei-s  of  .idministration,  nor  letters  testamentai-y.  on  the 
estate  ()f  a  living  person.  Letters' may  be  granted,  under  a 
mistake  of   fact,  upon  the  suj)])ositioii   that    the  testator,  or 


'  Sto.kton  W.  &.  \..  As*n.  v.  Chambers,  75  Cal.  332,  7  Ain.iSr.  Rep.  173; 
First  N.  15.  V.  Slmler.  l.-)3  N.  Y.  ](i3.  GO  Am.  St.  Kep.  GOl  :  Nifkum  v. 
Hiircktiart.  30  Or.  4(54,  IJO  Am.  8t.  Rep.  822:  Sonnenberg  v.  8tcinb;ich, 
it  S.  I).  518.  t;2  Am.  St.  Rep.  8«5. 

-Downer  v.  Smiih,  24  Cal.  114;  Coppinger  v.  Rice.  33  Cal.  408: 
rjrimes  v.  Xorris,  (5  Cal.  021,  ()5  Am.  Dec.  .545;  Adam.s  v.  Xorris,  23 
How.  (CS.;3.")3;  Tevis  v.  I'iteher,  IO('al.4(i5;  McNeil  v.  Congrega- 
lional  Society.  00  Cal.  105. 

•''  Nowler  v.  (  oit.  1  Ohio,  519,  13  Am.  Dec.  040;  Salmond  v.  l*i  ice.  13 
Ohio.  30.S.  42  Am.  Dec.  204;  AValts  v.  Waddle,  G  Ret.  389;  Wills  v.  Cow- 
l»er,  2  Ohio.  124;  Latimer  v.  R.  R.  Co.,  43  Mo.  105,  97  Am.  Dec.  378; 
I'rice  V.  .lolinHon.  1  Ohio  St.  390. 

*  Varner  v.  iJevil,  17  Ala.  280. 

\:> 


§    4  \()1I)    .HDK'IAL    SALKS. 

other  person,  is  dejul.  Tlie  case  is,  nevertheless,  one  in 
which  the  conrt  has  no  jurisdiction.  If  he  who  was  snp- 
posed  to  have  died  is,  in  fact,  living,  all  probate  sales  and 
other  proceedings  are  void,  and  can  have  no  effect  on  his 
title.'  In  but  one  State,  so  far  as  we  are  aware,  has  any  at- 
tempt been  made  to  authorize  the  administration  upon  the 
estate  of  one  who  may  be  living.  By  the  Public  Laws  of 
Khodc  Island,  passed  in  1<S82,  provision  is  made  for  the 
oranting  of  letters  of  administration  "  as  if  he  were  dead," 
upon  the  estate  of  one  who  has  left  the  town  of  his  domi- 
cile, and  has  not  been  heard  from,  directly  or  indirectly, 
for  the  term  of  seven  years.  This  statute  has  been  adjudged 
unconstitutional  on  the  ground  that  "  to  administer  upon  a 
person's  estate  while  he  is  still  living  is  to  deprive  him  of 
property  contrary  to  the  law  of  the  land,  or,  as  it  is  ordi- 
narily said,  without  due  process  of  law,  and  hence  is  in  vio- 
lation of  article  1,  section  10  of  the  constitution  of  this 
State,  and  also  of  article  14  of  the  amendments  of  the  con- 
stitution of  the  United  States."'^ 

It  seems  scarcely  necessary  to  observe  that  the  grant  of 
letters  testamentary  or  of  administration  cannot  bring 
within  the  jurisdiction  of  the  court  property  or  any  interest 
therein  not  held  by  the  decedent  at  the  time  of  his  death, 
and  that  it  may  alwaj^s  be  shown  as  against  a  sale  of  such 
property,  though  apparently  authorized  by  the  court,  that  his 
interest  therein  had  been  conveyed  or  had  otherwise  terniin- 

1  Danean  v.  Stewart.  2.5  Ala.  408,  60  Am.  Dec.  .527;  Griffith  v.  Frazier. 
8  Crancb,  9;  Fisk  v.  Norvel,  9  '''-^sx.  13,  58  Am.  Dec.  128;  Jochumsen  v. 
Suffolk  8av.  Bank,  3  Allen,  87;  Withers  v.  Patterson,  27  Tex.  496,  8(J 
Am.  Dec.  643;  Beckett  v.  Selover,  7  Cal.  215,  68  Am.  Dec.  237;  Springer 
V.  Shavender,  116  :N'.  C.  12,  47  Am.  St.  Rep.  791,  118  jST.  C.  33,  54  Am.  St. 
Rep.  70S:  Scott  v.  McXeil,  154  U.  S.  34.  But  a  majority  of  the  court  of 
appeals  of  Xew  York  declared,  in  Roderigas  v.  East  River  Sav.  Inst., 
63  N.  Y.  460,  20  Am.  Rep.  555,  that  a  ^rant  of  administration  upon  the 
estate  of  a  living  person  was  not  void.  But  see  a  further  decision  in  the 
same  case,  76  N.  Y.  316,  32  Am.  Rep.  309. 

'■^  Carr  v.  Brown,  20  R.  I.  217,  79  Am.  St.  Rep.  855. 

i<; 


VOID    .TUDiriAL    SALES.  §    4 

ated  prior  to  hh  death. ^  Grants  of  letters  of  adinistration 
were  formerly  adjudged  to  be  void  unless  the  deceased  did,  in 
fact,  die  intestate. ^  Surrogate  and  probate  courts  are  usu- 
ally limited  in  their  jurisdiction  to  a  specified  class  of  cases. 
Thus,  it  is  generallv  required  that  a  man's  estate  be  settled 
in  the  county  where  he  resided  at  the  time  of  his  death.  If 
it  ai)pears  that  letters  testamentary  or  of  administration 
were  granted  in  a  county  in  which  the  deceased  did  not 
reside,  the  whole  proceedings  must  be  regarded  as  void.^ 
How,  and  in  what  circumstances  this  fact  may  be  made  to 
appear,  are  (juestions  to  which  adverse  answers  may  be 
found  in  the  authorities.  Undoubtedly  the  records  of  the 
court  may  be  inspected.  If  they  show  the  non-residence 
of  the  deceased,  they  are  competent  evidence  of  their  own 
invalidity.  If  they  fail  to  assert  anything  about  the  resi- 
dence, either  in  the  averments  of  the  petition  or  in  the  find- 
ings of    the  court,  we   should  judge  this  to  be  fatal.     In 

1  O'Connor  v.  Vineyard.  01  Tex.  488. 

-  ]rolyoke.v.  Ilaskins,  .">  Pick.  24,  16  Am.  Dec.  372;  Brock  v.  Frank.  .")l 
Ala.  !)1;  Kane  v.  I'aul,  14  Pet.  39;  Griftith  v.  Frazier,  8  C ranch,  24. 
Tlii.-!  rule  is  believed  to  be  obsoliite  in  the  Fnited  States.  In  its  stead 
we  have  adopted  the  rule  that  a  grant  of  administration,  made  by  a 
court  having  jurisdiction  of  the  subject-matter  and  of  the  particular 
case,  while  it  remains  unrevoked,  cannot  be  regarded  as  void.  "Nor 
can  the  recall  or  repeal  of  the  appointment  be  fairly  regarded  as  plac- 
ing the  appointees  of  the  court  in  the  same  position  as  if  the  decree 
never  existed.  On  the  contrary,  all  acts  done  in  the  due  course  of  ad- 
ministration, while  such  decrees  remain  in  force,  must  be  held  entirely 
valid."  Redfield  on  Wilis.  Fart  IF,  p.  10!»;  Bigelow  v.  Bigelow,4  Ohio, 
13S.  lit  Am.  Dec.  T/.tJ \  Kittredge  v.  FoLsom.  8  X.  11.  98;  Ward  v.  Oaks, 
42  Ala.  22.");  .Jennings  v.  Moses.  38  Ala.  402;  Broughton  v.  Bradley,  34 
Ala.  (J!»4:  Brock  v.  Frank,  r)l  Ala.  91.  But  one  who  deals  with  an 
executor  is  not  protected  if  he  has  notice  of  the  existence  of  a  later  will 
than  the  one  admitted  to  probate,     (iaines  v.  De  La  Croix,  (i  AVall.  720. 

■  Beckett  v.  Helover,  7  Cal.  215,  08  Am.  Dec.  237;  Ilaynes  v.  Meeks,  10 
<  al.  110,  70  Am.  Dec.  703:  Harlan's  p:state,  24  Cal.  182,8;")  Am.  Dec.  58; 
.Moore  v.  Phllbrick,  32  Me.  102,  52  Am.  Dec.  042;  Munson  v.  Newson.  9 
Tex.  109;  Cutts  v.  Ilaskins,  9  Mass.  543;  Ilolyoke  v.  llaskins,  5  Pick.  20, 
and  9  Pick.  259,  10  Am.  Dec.  372;  (Joodrich  v.  Pendleton,  4  Johns.  Cli. 
:,v.i. 

17  (2) 


§    4  VOID    .H'DICIAL    SALES. 

every  case  it  ought  to  iii^yiciiv,  prima  facte,  that  the  court 
had  jurisdiction  over  the  estate.  Usually  a  petition  is  pre- 
sented to  the  court  or  judge,  in  which  the  facts  authorizing 
the  assumption  of  jurisdiction  in  the  particular  case  are 
stated.  The  duty  of  the  court  or  judge  is  to  investigate 
and  determine  the  truth  of  these  jurisdictional  allegations. 
Its  subsequent  grant  of  letters  implies  that  these  allega- 
tions have  been  found  to  be  true.  "  Whenever  the  juris- 
diction of  a  court  not  of  record  depends  on  a  fact  Avhich  it 
is  required  to  ascertain  and  settle  by  its  decision,  such 
decision,  if  the  court  has  jurisdiction  of  the  parties,  is  con- 
clusive, and  not  subject  to  any  collateral  attack."  ^  Hence, 
in  a  case  where  a  probate  court  has,  upon  a  petition  assert- 
ing the  essential  jurisdictional  facts,  and  after  notice  to  the 
parties  in  interest,  given  in  the  manner  prescribed  by  law, 
granted  letters  testamentary  or  of  administration,  the  pro- 
ceedings cannot  be  avoided  collaterally,  in  the  majority  of 
the  States,  by  proof  that  the  deceased  did  not  die  within 
the  jurisdiction  of  the  court. ^  Any  other  rule  would  lead 
to  the  most  embarassing  results.  The  residence  of  a 
deceased  person  can  be  determined  only  by  hearing  parol 
evidence.  Different  judges  may  reach  opposite  conclusions 
from  the  same  evidence.  The  parties  in  interest  may  at 
separate  times  produce  different  evidence  on  the  same  issue. 
If,  after  a  court  had  heard  and  decided  the  issue  concern- 
ing the  residence  of  the  deceased,  the   question  remained 

'  Freeman  on  Judgments,  sec.  523. 

2  Irwin  V.  Scribner,  18  Cal.  499;  Lewis  v.  Button,  8  How.  Pr.  103; 
Andrews  v.  Avery,  14  Gratt.  236,  72  Am.  Dec.  355;  Warfleld's  Estate,  22 
Cal.  51,  83  Am.  Dec.  49;  Sutton  v.  Sutton,  13  Vt,  71;  Fisher  v.  Bassett, 
9  Leigli,  119,  33  Am.  Dec.  227;  Barrett  v.  Garney,  33  Cal.  530;  Driggs 
V.  Abbott,  27  Vt.  581,  65  Am.  Dec.  214;  Burdett  v.  Silsbee,15  Tex.  615; 
Monell  V.  Dennison,  17  How.  Pr.  422;  Abbott  v.  Coburn,  28  Vt.  663,  67 
Am.  Dec.  735;  Rarborg  v.  Hammond,  2H.  &G.  42;  King  v.  Connell, 
105  Ala.  590,  53  Am.  St.  Rep.  144;  Bradley  v.  Missouri,  etc.,  Ry.  Co., 
51  Neb.  653,  66  Am.  St.  Rep.  473.  See  also  Riley  v.  McCord,  24  Mo.  265 ; 
Wight  V.  Wallbaum,  39  111.  554. 

18 


VOID    .lUDIClAL    8ALE8.  §    4rt 

unsettled  to  such  an  extent  that  it  could  be  relitigated  for 
the  purpose  of  avoiding  all  the  proceedings  of  the  court, 
no  person  would  have  the  temerit}'  to  deal  with  executors 
or  administrators. 

§  4a.  Judgiuents  and  Orders  in  Excess  of  Jurisdiction. 

— Though  a  court  has  jurisdiction  of  the  parties  and  of  a 
subject-matter  with  which  it  is  competent  to  deal,  it  may, 
nevertheless,  enter  a  judgment  or  order  absolutely  void. 
I)ecause  not  Avithin  such  subject-matter  or  in  excesss  of  any 
power  which  the  court  may  exercise  over  it.  Thus,  a  court 
having  jurisdiction  of  the  estate  of  a  decedent  or  of  a  minor 
<tr  incompetent  person  does  not  have  an  absolute  power  of 
disposal  of  it,  and  must  find  in  the  law  a  support  for  every 
order  made  respecting  it.  Otherwise  the  order  may  be 
disregarded  as  void,  and  whoever  attempts  to  deraign  title 
under  it  must  fail.  A  court  of  i)robate  having  jurisdiction 
to  ))artition  the  re;d  estate  of  a  decedent  cannot  partition 
pr<)])crty  of  which  he  was  but  a  part  owner,  though  the 
other  owners  are  also  his  heirs  at  hnv.^  It  n  court  has 
authoritv  to  mortiiaife  and  sell  it  cannot  authorize  an 
exchange,-  nor  can  it  authorize  a  sale  of  property  belonging 
partly  to  an  infant,  u[)on  whose  estate  it  has  granted  letters 
of  guardianship,  and  partly  to  a  third  person,  though  the 
object  is  to  effect  a  partition  between  them.''  A  judgment 
is  also  void  in  so  far  as  it  assunu's  to  deal  with  parties 
not  before  the  court, ^  or  with  [)ro])erty  not  within  its  terri- 
torial jurisdiction,"'  or  though  within  such  jurisdiction  not 
described  in  the  complaint.*'  Many  other  illustrations 
might    be   given    of  judgments    or  orders    which    are    void 

'  r.uckley  v.  Superior  ('ourt,  lO'i  Cal.  (I,  -Jl  Am.  .St.  liep.  18."). 
''■  .Moran  v.  .lames.  4.")  X.  Y.  Siipi).  537.  )7  V>.  480;    i'erin  v.  .Megibben, 
."):i  Fed.  Itep.  m. 

■•  (ilaesgow  V.  McKinnon.  7!J  'l"<'X.  IIG. 

^  Houser  v.  Smilb,  I'J  Utah.  ]."»();  Dunfee  v.  <  'liilds.  45  W.  Va.  155. 

'■>  Roger.s  v.  Cady,  104  (  al.  2.S8,  4:^  Am.  St.  Jlep.  100. 

«  Falls  V.  Wrijrht,  .55  Ark.  .5G2,  29  Am.  St.  Kep.  78. 

11> 


§    i((  \()I1)    .JUDICIAL    SALES. 

though  the  court  had  jurisdiction  of  the  parlies  and  of  some 
subject-uuitter  before  it,  because  it  undertoolv  either  to  deter- 
mine some  issue  not  presented  by  the  pleadings,  or  to  grant 
some  relief  not  Avithin  such  issues.^  Judgments  or  orders 
of  this  character  do  not  usuall}^  result  in  execution  or  judi- 
cial sales,  but  where  they  do  sucli  sales  must  be  declared 
void,  as  where  the  court  entered  a  personal  judgment  in  an 
action  in  which  such  judgment  was  entirely  unauthorized 
b}^  the  pleadings,'^  or  undertook  to  direct  a  sale  of  specific 
real  property  when  no  cause  for  such  sale  was  shown,  or 
the  property  was  not  described  in  the  pleadings  upon  which 
the  judgment  or  order  was  based. '^ 

When  a  sale  is  made  by  a  receiver  it  is  incumbent  on  the 
purchaser  to  ascertain  whether  the  court  had  jurisdiction  to 
ap[)oint  him,  and  whether,  notwithstanding  such  appoint- 
ment may  have  l)een  authorized,  its  and  his  authority  over 
the  property  still  continued  to  the  extent  of  authorizing  him 
to  sell  and  transfer  it.  It  is  true  that  in  a  collateral  attack 
upon  an  order  appointing  a  receiver,  "  if  the  jurisdiction  of 
the  court  can  in  any  event  be  upheld  and  its  action  validated, 
this  will  be  done,  even  though  the  facts  showing  such  juris- 
diction are  defectively  stated  and  inferences  must  be  indulged 
to  support  the  judgment."^  But  confessedly  the  appoint- 
ment of  a  receiver  in  a  case  and  under  circumstances  in 
which  the  court  had  not  authority  to  make  it  is  void.^ 
Relief  against  it  need  not  be  sought  by  appeal  but  may 
be  by  certiorari,  or  sometimes  by  prohibition.     Nor  is  it 

1  AVatkins  L.  M.  Co.  v.  Mullen  (Kan.  App.),  54  Pac.  Rep.  921 ;  Mun- 
day  v.  Vail,  43  N".  J.  Law,  418;  Reynolds  v.  Stockton,  43  N.  J.  Eq.  211. 
3  Am.  St.  Rep.  305,  140  U.  S.  254;  Metcalf  v.  Hart,  3  Wyo.  513,  31  Am. 
St.  Rep.  122. 

2  Gille  V.  Emmons,  58  Kan.  118,  02  Am.  St.  Rep.  G09. 

3  Seamster  V.  Blackstoek,  83  Va.  232,  5  Am.  St.  Rep.  262;  Jackson  v. 
Miles,  94  Ga.  484,  98  Ga.  512. 

4  Illinois,  etc.,  S.  B.  v.  Pacific  Ry.  Co.,  115  Cal.  285. 

estate  V.  Union  X.  B.,  145  Ind.  537,  57  Am.  St.  Rep.  209;  Larsen  v. 
Winder,  14  Wash.  109,  53  Am.  St.  Rep.  864. 

20 


VOID    JUDICIAL    SALES.  §    4rt 

indispensable  that  any  affinnativc  action  be  taken  for 
the  purpose  of  vacating  the  appointment,  for  if  it  was  void 
this  may  be  shown  eoliaterall}'  in  any  proceeding  in  which 
it  ma\'  be  material,^  The  appointment  may  bo  void,  liecause 
at  the  time  it  was  made  the  court  had  not  acquired  jurisdic- 
tion of  the  parties  or  of  the  subject-iuatter.'-  It  may,  on  the 
other  hand,  have  jurisdiction  of  the  subject-matter  of  the 
action  and  of  all  the  parties  thereto,  and  its  appointment  of 
the  receiver  nevertheless  be  void,  and  therefore  subject  to 
colhiteral  attack,  if  in  excess  of  what  the  court  had  jurisdic- 
tion to  do  at  the  time  it  was  made. '  Hence,  though  in  a 
suit  to  foreclose  a  mortgage  the  court  has  jurisdiction  of 
the  parties  and  of  the  subject-matter,  yet  its  appointment 
of  a  receiver  therein  in  a  case  not  authorized  by  law  is  void, 
though  the  parties  to  the  suit  have  stipulated  that  the 
receiver  may  be  appointed.^  '"Where  a  court  has  no 
authorit}'  under  the  law  to  api)oint  a  receiver,  such  authoritv 
cannot  be  conferred  l)y  consent  or  stipulation  of  the  parties. 
In  such  case  consent  of  parties  cannot  confer  jurisdiction 
upon  a  court,  nor  impose  upon  it  the  duty  of  taking  care 
of  and  disposing  of  the  property.  It  might  as  well  be  said 
that  in  a  suit  upon  a  promissory  note,  or  upon  any  simple 
contract  for  the  payment  of  money,  a  stipulation  in  the 
instrument  by  which  the  debt  was  evidenced  that  the  court 
might  ai)i)oiiit  a  receiver  upon  suit  brought  woukl  gi\(^ 
jurisdiction  to  the  court  to  appoint  such  receiver;  or  that 
there  coukl  be  a  specific  performance  of  a  contract  in  any 

'  Los  AD<^eIes  (_'.  W.  Co.  v.  Superior  Court,  124  Cat.  3S5. 

-  llavemeyerv.  Superior  Court,  84  Cal.  327,  18  Am.  St.  llep.  I'.i2; 
Murray  V.  Superior  Court,  129  Cal.  028;  State  v.  Superior  Court.  1.") 
Wu-^li.  (JiW.  ~>r>  Ain.  St.  Jiep.  H07. 

■  (Juy  V.  l)o-d\i,  47  I\an.  23(;:  Whitney  v.  Hanover  X.  15..  71  iVIiss.  lOOK; 
State  V.  Jtoss,  122  .Mo.  43.");  State  v.  Johnston.  21  Mont.  ]'>').  (J!)  Am.  St. 
i.'f'p.  (il.">;  .Adier  v.  'rurnhull.  .">7  X.  .1.  Law.  (i2;  Thurber  v.  .Miller,  11  S. 
I).  124. 

*  Ober  V.  Manufacturing  Co..  II  I^a.  Ann.  570;  AVhitmy  v.  lianovi-r 
X.  15..  71  Miss.  lOU'J;  John-son  v.  I'owers,  21  Xeb.  2!»2. 

21 


§    4a  VOID    JUDICIAL    SALES. 

kind  of  case  because  the  parties  had  stipuhited  for  a  decree 
of  spccitic  perforiuauce."  ^  So,  if  by  the  entry  of  a  final 
jadginent  the  court  has  exhausted  its  jurisdiction  over  the 
parlies  and  the  subject-matter,  it  cannot  subsecjuently 
a[)i)oint  a  receiver,  "if  its  order  is  not  designed  to  carry 
into  eifect  the  judgment  rendered,  but  is  in  effect  a  new 
adjudication  in  the  nature  of  a  decree  of  foreclosure  depriv- 
ing the  })hiintiff  of  property  held  by  him  under  constitu- 
tional guaranties  and  of  which  he  cannot  be  deprived  with- 
out due  process  of  law.*"-  In  this  case,  it  appeared  that  in 
an  action  for  divorce  a  receiver  had  been  appointed  who  had 
not  taken  any  property  into  his  possession.  Under  the 
tinal  judgment  granting  the  divorce  he  was  continued  in 
authority  and  directed  to  prosecute  and  to  take  all  measures 
necessary  to  enforce  the  payment  of  alimony  awarded  by 
the  decree.  Acting  on  the  authority  supposed  to  be  con- 
ferred upon  him  by  his  appointment  and  by  such  decree, 
he  sold  certain  real  propert}',  and  the  purchaser  applied  for 
a  writ  of  assistance,  but  he  was  not  entitled  thereto  because 
the  appointment  of  the  receiver  was  void. 

In  proceedings  to  foreclose  a  mortgage  or  other  lien  per- 
sons supposed  to  claim  adverse  liens  or  titles  are  often 
made  parties  defendant  for  the  purpose  of  obtaining  a 
judgment  against  them  ^vhich  will  in  effect  determine  the 
validity  of  their  claims,  to  the  end  that  the  purchaser  may 
feel  assured  that  he  will  obtain  a  perfect  title,  or,  at  least, 
one  which  cannot  be  assailed  and  overcome  by  any  of  the 
parties  to  the  suit.  AVhile  there  is  some  conflict  upon  this 
subject,  the  decided  weight  of  authority  affirms  that  in  such 
a  suit  the  court  has  no  jurisdiction  which  will  enable  it  to 
do  more  than  to  authorize  measures  necessary  to  the  vest- 
ing in  the  purchaser  of  the  title  held  at  its  inception  by  the 
mortgagor  or  the  other  person  by  or  against  whom  the  lien 

'  BHker  v.  Varney.  129  Cal.  niU. 

-  White  V.  White,  13U  Cal.  597,  SO  Am.  St.  Rep.  laO. 

22 


VOID    JUDICIAL    SALES.  §    4a 

was  created.  It  is  true,  perhaps,  that  if  the  person  made 
a  party  defendaut  and  holding  some  claim  precedent  or 
paramount  to  that  of  the  lien  appears  and  tiles  an  answer 
setting-  out  such  claim,  and  the  court  adjudicates  thereon, 
its  determination,  if  not  revised  and  vacated  ui)on  appeal, 
may  not  subsequently  be  avoided  on  the  ground  that  it  was 
in  excess  of  its  jurisdiction;  but  in  the  absence  of  such 
answer,  the  judgment  cannot  affect  such  adverse  or  para- 
mount lien  or  claim  whatsoever  be  the  allegations  of  the 
complaint  respecting  its  being  subordinate  or  subject  to  the 
lien  sought  to  be  foreclosed,^  '"The  object  of  a  suit  for 
the  foreclosure  of  a  mortgage  is  to  subject  to  a  judicial 
sale  and  vest  in  the  purchaser  thereunder  the  same  title  or 
estate  in  the  mortgaged  property  which  the  mortgagor  had 
at  the  time  of  the  execution  of  the  mortgage,  and  the  onlv 
proper  or  necessary  parties  defendant  to  such  suit  are  the 
mortgagor  and  those  who  claim  an  interest  in  the  property 
derived  subsequent  to  the  date  of  the  mortgage.  Titles 
adverse  to  that  of  the  mortgagor,  or  superior  to  that  cov- 
ered by  the  mortgage,  are  not  proper  subjects  for  deter- 
mination in  the  suit.'-  Whenever  it  is  made  to  appear 
that  the  interest  of  a  defendant  is  adverse  or  superior  to 
that  covered  by  the  mortgage,  the  proper  action  of  the 
court  is  to  dismiss  him  from  the  suit.'  If,  however,  the 
plaintiff  makes  the  holder  of  an  adverse  title  a  party  de- 
fendant to  the  foreclosure  suit,  setting  forth  facts  from 
which  he  claims  that  such  title  is  subordinate  to  his  mort- 
gage, and  issues  upon  such  facts  are  presented  for  adjudi- 
cation   without   ol)jection   the    part    of   the  defendant,    the 

'  I'.eronio  V.  Ventura  C.  L.  Co..  129  Cal.  2:^2.  79  Am.  St.  Rep.  118; 
.Murray  v.  Ktcbepare.  129  Cal.  318;  Farmers'  X.  B.  v.  Gates,  33  Or.  388, 
72  Am.  .St.  Rep.  724;  note  to  Provident  L.  T.  ("o.  v.  Marks,  68  Am.  St. 
\U'\,.  3r>4-3(;2. 

■-' Jones  on  Mortgages,  §  l.')89;  Wiltsie  on  Foreclosures,  ii§  191.  102; 
.Mc(,'oiiit)  V.  Spangler,  71  Cal.  418. 

"Ord  v.  Bartlolt,  83Cal.  428;  Code  v.  i'.eiin.  93  (,'al.  .578;  lIoi)pe  v. 
Fr.untain.  104  Cal.  91. 

23 


§    5  A'OID    JUDICIAL    SALES. 

judgment  of  the  court  thei-con  will  not  be  void.  The  court 
may  decline  to  pass  upon  the  question  as  not  germane  to- 
the  suit  f(n'  foreclosure,  or  it  may  determine  that  such 
claim  of  the  defendant  is  unfounded,  or  that  his  iuterest  in 
the  premises  is  subordinate  to  the  mortgage,  or  it  mav  ren- 
der a  decree  of  foreclosure  subject  to  the  prior  rights  of 
such  defendant.  The  subject-matter  of  such  controversy 
will  be  within  the  jurisdiction  of  the  court,  and  if  the 
parties  thereto  submit  the  controversy  to  its  determination, 
the  judgment  thus  rendered  will  be  as  conclusive  up(m  them 
as  if  rendered  in  an  action  specially  brought  for  that  pur- 
pose, and  will  not  be  subject  to  collateral  attack.^  Under 
the  usual  allegation  in  a  complaint  for  foreclosure  that  a 
defendant  other  than  the  mortoao-or  claims  some  interest  in 
the  premises,  and  that  such  interest  is  subsequent  and 
subordinate  to  that  created  by  the  mortgage,  any  prior  in- 
terest held  b}'  such  defendant  is  not  affected  by  the  judg- 
ment therein.  Such  averment  is  not  material  to  tlie})laint- 
iff's  cause  of  action,  nor  is  it  an  issuable  fact,  and  whether 
the  court  rendered  judgment  upon  the  default  of  the  de- 
fendant, or  upon  an  issue  created  b}^  his  denial  of  this  aver- 
ment, without  setting  forth  the  character  of  his  interest, 
any  prior  interest  held  by  him  is  not  affected  by  such  judg- 
ment." - 

§  5.  3Ietbods  of  Acquiring  Jurisdiction. — Jurisdiction 
over  a  comi)lainant  is  obtamed  by  his  coining  before  the 
court  and  making  his  complaint  in  a  manner  recognized  by 
law.  This  is  usually  by  a  statement  in  writing,  filed  in  the 
court  or  with  the  clerk  thereof,  flurisdiction  over  the  de- 
fendant is  obtained  by  his  voluntary  appearance  in  the  ac- 
tion, or  by  the  service  of  process  upon  him.  Jurisdiction 
over  a  thing  proceeded  against  in  rem  is  acquired  by  its 

1  Helck  V.  Keinhimer,  105  N.  Y.  470;  Goebel  v.  Iffla,  111  X.  Y.  170; 
Cromwell  v.  McLean,  123  X.  Y.  474. 

2Beronio  v.  Ventura  C.  L.  Co.,  129  Cal.  232,  79  Am.  St.  Kep.  118. 
Contra:  Provident  L.  T.  Co.  v.  Marks,  59  Kan.  230,  68  Am.  St.  Rep.  349. 

24 


VOID    JUDICIAL    SALES.  §     6 

seizure  under  the  process  of  the  court. ^  If  a  def^endant 
neither  appears,  nor  is  served  with  process,  a  judgment 
against  him  is  void.  If,  however,  he  is  served  with  process 
which  is  irregular  in  form,  or  the  full  time  allowed  for  ap- 
pearing and  answering  is  not  given  him,  or  the  mode  of 
service  is  irregular,  he  must  generally  ol)ject  to  such  irregu- 
larity. If  he  fails  to  do  so,  and  judgment  is  entered 
against  him,  it  wdl  usually  not  be  treated  as  void  when  col- 
laterally assailed.-  When  letters  testamentary  or  of  admin- 
istration on  the  estate  of  deceased  person,  or  of  guardian- 
ship upon  the  person  or  estate  of  a  lunatic  or  minor,  are 
applied  for,  such  measures  as  the  statutes  require  must  be 
taken  for  the  purpose  of  obtaining  jurisdiction  over  the 
persons  interested.  The  statute  may  authorize  the  court 
to  proceed  without  notice  to  any  one.  The  proceeding  may 
be  in  rem.  But  if  notice  is  exacted  by  the  statute,  either 
by  publication,  or  by  the  personal  service  of  a  citation,  a 
substantial  compliance  with  the  statute  is  prerequisite  to 
obtaining  authority  to  proceed.-^ 

§  I).   Where  the  Judge   is  Disqualified  from  Actiiijt. — 

Sometimes  a  court  has  jurisdiction,  both  over  the  j)ersou 
and  the  subject-nuitter,  but  cannot  proceed  because  the 
judge  thereof  is  dis(]ualiHed  from  acting  in  the  particular 
case.  If,  however,  he  proceeds,  when  incompetent  by 
statute,  his  judgment  or  order  is,  in  most  States,  invalid. 


J  Cooper  V.  Reynold?,  10  Wall.  308;  Galpin  v.  Page.  1  Cent.  L.  .r.  V.)\. 
I  Sawy.  309,  IS  Wall.  3.50;  Freeman  on  Judgments,  sees.  600  and  (ill. 

-Freeman  on  Judgments,  see.  126;  Hanks  v.  Neal,  44  Miss.  224 ; 
Stampley  v.  King.  .")1  Miss.  738;  Ex  parte  Howard,  etc..  I.  Co.,  119  Ala. 
4S.1,  72  Am.  St.  Rep.  928;  Estate  of  Newman,  7.j  Cal.  213,  7  Am.  St.  Rep. 
146;  <irif1ith  v.  Harvester  Co..  92  Iowa,  634,  54-  Am.  St.  Rep.  .")73: 
Mitchell  V.  Ateii.  37  Kan.  33,  1  Am.  St.  Rep.  231  ;  Stafford  v.  Callops. 
123  X.  C.  19,  (IS  Am.  St.  Rep.  SI.'):  Altman  v.  School  District,  35  Or.  sr>^ 
76  Am.  St.  Rep.  46s. 

"  Jlandolph  v.  Dayue.  44  Cal.  370:  lieckett  v.  Selover,  7  Cal.  21").  OS 
Am.  Dec.  267. 

25 


§     7  \()I1)    .JKDICIAL    SALES. 

For  the  purpose  of  tryino;   or  determining  the  particular 
matter,  he  is  not  a  judi>e,^ 

§  7.  Suspension  or  Loss  of  Jurisdiction. — A  court  or 
judge  having  authority  to  proceed  at  one  time  may  be  de- 
vested of  jurisdiction,  either  temporaril}^  or  permanently. 
By  the  complete  exercise  of  its  jurisdiction  to  tinal  judg- 
ment the  court  is  precluded  from  again  taking  up  the  cause 
and  while  the  first  judgment  remains  in  force  proceeding 
to  retry  it  and  to  enter  another  judgment.^  The  court  may 
he  abolished,  or  its  jurisdiction  may  be  devested  by  statute. 
The  proceedings  may  be  removed  into  some  appellate  tri- 
bunal. The  term  of  the  court  may  be  adjourned  sine  die; 
in  Avhich  case  no  judgment  can  be  entered  before  the  re- 
opening of  the  court  at  its  next  term,  unless  expressly 
authorized  by  statute.  During  Sundays  and  other  non- 
judicial days  courts  are  generally  without  authority  to  act, 
and  where  such  is  the  case  judgments  or  orders  entered  by 
them  are  yoid/^  It  is  also  ordinarily  essential  that  a  court 
be  held  at  a  place  fixed  by  law,  and  whenever  it  appears 
that  it  was  held  at  a  place  where  it  could  not  lawfully  sit  its 
proceedings  arc  \'oid.^  In  all  cases  where  a  court  is  rendered 
incompetent  to  proceed,  its  proceedings  during  such  incom- 
})etcncy  are  as  invalid  as  though  it  had  never  possessed  juris- 
diction."' If  a  probate  court  appoints  an  executor  or  admin- 
istrator it  cannot,  while  he  continues  in  office,  appoint 
another.     Its  jurisdiction  is  exhausted.     Its  further  grant 


^  Freeman  on  Judgments,  sec.  145;  Keeler  v.  Stead.  50  Conn.  501.  7 
Am.  St.  Rep.  320;  Sigourney  v.  Sibley,  21  Pick.  101,  32  Am.  Dec.  248; 
€oflin  V.  Cottle,  9  Pick.  287;  Hall  v.  Thayer,  105  Mass.  219,  7  Am.  Eep. 
i)13;  Gay  v.  Minot,  3  Cash.  352. 

2  Bank  of  Orland  v.  Dodson,  127  Cal.  208,  78  Am.  St.  Rep.  42. 

«  City  of  Parsons  v.  Lindsay,  41  Kan.  336,  13  Am.  St.  Rep.  290;  Ex 
parte  White,  15  Nev.  146,  37  Am.  Rep.  406;  Styles  v.  Harrison,  99  Tenn. 
128.  63  Am.  St.  Rep.  824. 

•»  llilson  V.  Kitchens,  107  Ga.  230,73  Am.  St.  Rep.  119. 

••  Freeman  on  Judgments,  sec.  121 ;  In  re  Terrill,  52  Kan.  29,  39  Am. 
St.  Rep.  327;  Ex  parte  Ellis,  37  Tex.  Cr.  Rep.  539,  m  Am.  St.  Rep.  831. 

26 


VOID    JUDICIAL    SALES.  §    7 

of  letters  i.s  void.^  Neither  can  it  :ipi)oint  another  admin- 
istrator after  an  estate  has  been  fully  administered  upon 
and  distributed  to  the  heirs.-  A  like  result  follows  the 
removal  of  any  sul)ject-matter  from  the  jurisdietlon  of  the 
court,  as  where  the  result  of  a  decree  of  partition  is  to 
plaee  property  beyond  the  jurisdiction  of  a  probate  court. 
Its  subsequent  sale  under  authority  of  that  court  is  neces- 
sarilv  void.--  Where  a  statute  forbade  the  administration 
ui)on  the  estates  of  persons  who  had  been  dead  for  more 
than  twenty  years,  a  grant  of  administration  in  defiance  of 
the  statute  was  adjudged  void.^  If  notice  is  given  that  a 
petition  for  the  sale  of  lands  will  be  presented  at  a  time 
specified,  and  it  is  not  then  presented,  the  person  interested 
ill  <)j)j)osinu-  it  mav  reoard  it  as  al)andoned.  The  court  has 
no  authority  to  hear  it  without  giving-  a  new  notice.-"^  But 
if  the  failure  to  present  the  a[)plication  arises  from  the  fact 
tiiat  the  term  of  court  is  not  opened,  no  presumption  of 
al)andonment  can  be  indulged.  The  petition  may,  it  has 
been  held,  be  presented  at  the  next  term  without  any  new 
notice.*' 

The  complete  exercise  of  jurisdiction  over  a  subject- 
matter  may  exhaust  the  jurisdiction,  not  only  of  the  court 
X)  exercising  it,  l)ut  of  another  court  possessing  concur- 
rent jurisdiction  over  the  same  subject-matter.  Thus,  if 
in  the  progress  of  the  administration  of  an  estate  m  the 
probate  court  of  a  county,  certain  lands  of  a  decedent  are 
nuthorizod  to  be,  and  are  sold,  the  sale  confirmed,  and  a 
convcvancc  made  to  the  i)urcliaser,  the  jurisdiction  of  the 
<-onrt  over  such  lands  is    clearly    exhausted.      They  become 

'  (iiillitb  V.  Frazier,  s  (jranch.  It:  Flinn  v.  Chase,  4  Den.  IK). 

-  risk  V.  Xorvel,  0  Tex.  Vi,  ns  Am.  Dec.  128, 
Wi.les  V.  Willaid,  -J  Mass.  12(i. 

'  Tiirney  V.  Tiirney,  :iJ  111.  <>2.'):  (;ib.«on  v.  Woil,  :{(>  III.  172,  s:{  Am. 
Dec.  LSI ;  Morris  v.  Ifogle.  :^7  111.  l.")0,  S7  Am.  Dec.  24;i.  See  also  Free- 
man on  Judgments,  sec.  r)2<i. 

•  Hanks  v.  Neal,  44  Miss.  224. 

*•  Henderson  v.  I/mdlev.  7.")  Tex.  1S.">. 


id 


VOID    .IIDU  lAI,    SAl.KS. 


,h,.  ,„-oiu-,tv  of  ihrpinrlKis.M-.  :uul  <-nnn..l  agu.n  be  suhject 
to   :uliMiMi>li:itioM    (lurino-  i1m>   rnnliiUKincc   of  his    life  and 
,,Nvnri<l.i|..      ir   ill-'  <li-tri.l    court    of  the  county  also  pos- 
>c.st-   piol.al.'  jmis.licliou,  aiui   subseciuently  assumes  au- 
th.uitv    ovrr    ll.r    r>lale  oflho  same  decedent,  and  orders 
llu.  s:„nr    ImiuN    lo    he   s., Id,  and   they   are  in  fact  sold  to  a 
punl.MMM-  l.a\  inir  no  Unouh'd.ue  of  the  former  proceedings, 
Mi.h  -^Mlr  i-   vi.id.  I.c.-anse   the    former   sale  completely  ex- 
I.Mn-^trd  all  prol.alc  jiiri>di(t ion  over  the  lands,  and  the  hit- 
Irr  -aK«  was  a  ukmv  imaiithori/.ed   assumption  of   authority 
..vrr  the   property    ..f  a   living    person.'     The  court  may, 
wiihont  exhaust  in-    its  jurisdiction,   practically  abdicate  it 
:ind  thus    loM-   aulhorily   to   pronounce   a   valid   judgment. 
The  in-tanci-s  where  this   will   occur  must    be  exceedingly 
ran-.      In  Windsor  v.  McVeigh,^  the  record   disclosed   that 
aft.-r  .lur  -ervi.c  of  i)rocess,  and  an  appearance  by   defend- 
ant in  rt'sponsc  to  such  service,  his  api)earance  and  answer 
were    >lri.ken    from   the  tiles,  and  a  decree  entered  against 
hiui.      It  was  hrld  that  this  action  of  the  court  was  equiva- 
lent to  recalling  its  process,  and,  therefore,  to  a  condemna- 
tion   without   any   opportunity   to  be  heard;   and  that  the 
decree  wa>  therefore  coram  nonjudice  and  void. 

§  7(7.  Suspension  or  Loss  of  Riglit  to  Enforce  Judg- 
ment or  Order. — If  a  judgment  is  satisfied,  the  right  to 
i--.ue  fxccutiou,  oi-  to  take  further  proceedings  under  a 
writ  previously  issued,  undoubtedly  terminates,  and  the 
weight  of  authority  declares  that  every  sale  made  after 
su<'h  .satisfaction  is  void.^''  This  rule  does  not  seem  appli- 
cable to  judicial  >ales  which  are  reported  to,  and  confirmed 
l)y,  the  court,  for  the  reason  that  it  would  seem  to  be  incum- 
bent on  the  i)ersons  interested  in  the  pro[)erty  sold  to  show% 
in   op[)osition   to  the  confirmation,  that  the   judgment  or 

'  Lindsay  v.  .laffray.  .")5  Tex.  626;  Smith  v.  Woolfolk,  115  U.  S.  143. 

2  'J3  U.  S.  274;  llovey  v.  Elliott,  l-J.")  X.  Y.  141,  167  U.  S.  414. 

•^  Knight  V.  Morrison.  79  Ga.  55,  11  Am.  St.  Eep.  405;  Soukup  v. 
Union  I.  Co.,  84  Iowa.  -148,  35  Am.  St.  Hep.  317;  Freeman  on  Execu- 
tions, sec.  19. 

28 


VOID    .ILDICIAL     SALES.  §     la 

order  under  which   the   sale  was  made  had  been  satisfied  or 
had  otherwise  become    inoperative.     It    has,  nevertheless, 
been  held  in  Pennsylvania  that  a  sale  of  property  by  an  ad- 
ministrator to  pay  a    debt    barred   by   the  statute  of  limita- 
tions is  void,  though  such  statutory  bar  existed  before  the 
order  of  sale  or  of   confirnuition   was   made,    and  might,  if 
properly  interposed,  have  prevented  the  making  of  either.^ 
The  force  of  a  iudgmeut  may  be  temporarily  suspended 
bv  an  appeal  accompanied  by  an  undertaking  sufficient  to 
-tav  further  proceedings.       In  such  case  it  might  be  well 
argued  that  if  a  defendant,  notwithstanding  the  appeal  and 
stay,  permits  plaintiff  to  take  out  execution  and  proceed  to 
enforce  it  without  making  some  motion  or  taking  some  pro- 
ceeding  in  arrest   of  such   action,  an  estoppel  might  arise 
against  asserting  his  claim  that  the  proceedings  were  void. 
The  few  decisions  which  have  been  made  upon  this  subject, 
liowever,  declare   otherwise.'-     Hence    if  an    executor  pro- 
ceeds to  sell  real  property  pending  an  ai)peal  from  the  order 
authorizing  such  sale,  his  action   is   entirely   unauthorized, 
and    any    sale    or    attemi)ted    conveyance    made     puisuant 
thereto  is  void.'     If  an   action   is   brought  upon  one  judg- 
ment resulting  in  the  recovery  of  another,  it  is   not  settled 
whether  or  not  the  second  judgment  operates  as  a  satisfac- 
tion of  the  first  and  the  termination   of  the  right  to  further 
enforce  it  by  execution.^     If  the  time  within  which  a  court 
is  allowed  to  issue   execution   on   a  judgment  has  expired,"" 
or  the  right  to    maintain   any  action  on  such  judgment  has 
become  barred  by  the  statute  of  limitations,''  the  writ  sub- 
se<|ii<'ntly  issued  is  void. 

1  Smith  V.  WildiiKin,  178  Pa.  St.  245.  .">()  Am.  St.  Rep.  700. 

2  Billiard  v.  McArdle,  US  Cal.  355,  35  Am.  St.  Kcp.  17G. 
"  Francis  v.  Daley.  150  Mass.  381. 

<  Freeman  on  Executions,  sec.  V.i. 

■•  Dorland  v.  Hanson,  81  Cal.  202,  15  Am.  St.  Rep.  44;  Jacks  v.  John- 
ston. StJ  Cal.  384.  21  Am.  St.  Rep.  50:  Cortez  v.  Superior  Ct.,  SG  Cal. 
274.  21  Am.  St.  Rep.  37. 

M.udeman   v.    llirth,   00  Mich.   17,35   Am.  St.  Rep.  588;  Coward  v. 

29 


§     7(?  NOID    .HDICIAL    SALES. 

ll  iu:iy  1)1'  claimccl  lluit  ihc  power  of  the  coiirl  to  proceed 
with  a  cause  ov(>r  the  subjecl-inatter  and  the  parties  to 
whic-h  it  once  had  eoneeded  jurisdiction,  absohilely  termin- 
ates upon  Ihe  (K'ath  of  the  parties  or  of  some  of  them.  In 
our  judiiiucnt  this  (jucstion  shoukl  be  determined  by  in- 
(|uiring  whether  such  death  ends  the  power  of  the  court  to 
proceed,  or  merely  rocpiires  it  to  take  some  action  by  way 
of  substituting  other  i)arties  in  interest,  and  perhaps  giving 
them  notice  of  such  substitution.  If  a  minor  or  incompe- 
tent person  dies  wluU'  his  estate  is  within  the  control  of  the 
court  which  has  appointed  a  guardian  thereof,  we  con- 
cede that  such  death  necessarily  terminates  the  authority  of 
the  court,  except  to  settle  the  accounts  of  the  guardian.  It 
cannot  continue  its  authority  by  substituting  some  repre- 
.sentative  or  successor  in  interest  in  place  of  the  decedent, 
and  hence  any  further  order  it  may  make  purporting  to 
authorize  the  sale  of  his  propert}'  must  be  void.^  In  ordi- 
nary cases,  however,  the  power  of  the  court  to  proceed  to 
final  judgment  is  not  extinguished  by  the  death  of  any  of 
the  i)arties,  w^hether  i)laintiff  or  defendant,  though  it  ought, 
before  proceeding  further  after  such  death,  bring  before  it 
his  representative  or  successor  in  interest.  The  failure  to 
do  so  is,  in  our  judgment,  a  mere  irregularity  not  affecting 
the  jurisdiction  of  the  court,  and  we  are  therefore  of  the 
opinion  that  if  jurisdiction  has  been  obtained  of  a  person 
in  his  lifetime,  neither  the  rendition  nor  entry  of  a  judg- 
ment for  or  against  him  after  his  death  is  void,"-  but  there 
is  some  dissent  from  this  conclusion." 

Chastain,  99  X.  C.  443,  G  Am.  St.  Rep.  533;  Merchants' X.  B.  v.  Braith- 
waite,  7  X.  D.  3.58,  66  Am.  St.  Rep.  653;  Freomaa   on  Executions.  §  '27«. 

1  Alford  V.  Halbert,  74  Tex.  346. 

2  Cochrane  v.  Parker,  12  Colo.  App.  169;  Clatlin  v.  Dunne,  129  111.  211, 
16  Am.  St.  Rep.  263;  Mitchell  v.  Schoono/er,  16  Or.  211,  8  Am.  St.  Rep. 
282;  Watt  V.  Brookover,  35  W.  Va.  323,  29Am.  St.  Rep.  811;  Metcalfe 
V.  Hart,  3  Wyo.  513,31  Am.  St.  Rep.  122;  Freeman  on -Judgments,  §1.53. 

•^  Kager  V.  Vickery,  61  Kan.  342,  78  Am.  St.  Rep.  318;  Kountz  v. 
Xational  T.  Co.,  197  Pa.  397;  note  to  Watt  v.  Brookover,  ^9  Am.  St. 
Rep.  816  to  819;  Freeman  on  .Judgments,  §  153. 

30 


VOID    .lUDICIAL    SALES.  §    8 

§  8.  General  Principles  Governing;  Jurisdictional  In- 
quiries.— In  attempting  to  decide  whether  a  judicial,  exe- 
cution or  probate  sale  can  be  avoided  on  the  ground  that 
the  court  entering  the  judgment  or  order  of  sale  did  not 
have  jurisdiction  over  the  person  of  the  defendant,  the  first 
in(]uirv  will  l)e  to  ascertain  whether  the  court  was  a  court 
of  general  jurisdiction,  or  a  court  of  special  or  limited 
jurisdiction,  or,  in  other  words,  whether  it  is  a  court  of 
record  or  cme  not  of  record.  This  in(|uiry  nuist  ))e  con- 
ducted chiefly  in  the  statutes  of  the  State.  If  the  court  is 
a  court  of  record  this  jurisdictional  question  can,  in  most 
States,  be  decided  with  comparative  ease.  Courts  of  record 
are  presumed  to  act  correctly.  "When  a  court  of  record  has 
entered  judgment  its  jurisdiction  over  the  defendant  is 
l)resumed,  unless  its  record  shows  the  contrary.^  If,  how- 
ever, the  record  shows  what  was  done  toward  ac(iuiriug 
jurisdiction,  nothing  else  will  be  presumed  to  have  been 
done,^  and  hence  if  from  what  appears  by  the  record  it  is 
clear  that  jurisdiction  is  not  established,  the  subseciuent 
action  of  the  court  may  be  disregarded  as  void.-^ 

An  ajiparent  exception  to  this  rule  arises  when  the  return 
on  the  summons  discloses  an  insutHcicnt  or  void  service. 
and  the  iudsfinent  or  (iccrcc  contains  recitals  or  Hndino's  in 
favor  of  the  jurisdiction  of  the  court.  In  this  case  the 
recital  or  tinding  prevails.  The  court  is  presunu'd  to  have 
had  other  evidence  than  that  c<mtaincd  in  the  return  on  the 
summons. •»  This  rule  has  been  a])[)lied  to  the  extent  of  sup- 

>  Freeman  on  .Judgments,  sec.  124;  Cox  v.  IJoyce,  152  Mo.  ri7lJ.  75  Am. 
St.  Kep.  4^3;  Ti-mplelon  v.  Ferguson.  89  Tex.  47;  liams  v.  Root,  22 
Tex.  Civ.  App.  413. 

*  Freeman  on  .Judgments,  sec.  125;  Moore  v.  Starks.  1  Ohio  St.  372; 
IJenson   v,  Cilley,  S  Ohio  St.  G13. 

'  Campbell  v.  Drais,  125  Cal.  2.53;  Cboate  v.  Spencer.  13  Mont.  127,40 
Am.  St.  Hep.  425;  Wilkerson  v.  Scboonmaker,  77  Tex.  G15,  19  Am.  St. 
Kep.  803;  Oelberman  v.  Ide,  iri  AVis.  069.  57  Am.  St.  Rep.  947;  O'Malley 
V.  Fricke,  104  Wis.  280;  I'ioneer  Land  Co.  v.  Maddux.  109  Cal.  033.  .50 
Am.  St.  Rep.  07:  McCJeo  v.  llaynes,  127  Cal.  330,  78  Am.  St.  Rep.  57. 

*  Freeman  on  .Judgments,  sec.  130. 

31 


^    8  AOII)    .UDICIAI-    SALKS. 

poitiiii;-  llio  piTsimiptioii  thai  though  the  summons  or  other 
process  shown  hv  the  record  was  void,  its  phice  had,  at 
vome  suhse(|uent  time,  been  supplied  by  adequate  process, 
when  the  record  recited  that  "all  of  the  defendants  have 
been  dulv  served  with  process  or  by  publication  in  a  news- 
paper, as  the  law  requires,  more  than  the  hnvful  time  prior 
to  the  sitting  of  the  court,  and  the  court  doth  find  that  this 
<'ourl  has  jurisdiction  both  of  the  parties  defendant  and  com- 
l)lainanl  and  the  subject-matter  of  the  suit."^  In  some  of 
the  States,  however,  if  there  is  a  return  of  the  service  of 
process,  any  recital  in  the  judgment  not  stating  the  mode 
of  service  is  considered  as  referring  to  such  return,  and  if 
the  service  there  shown  is  insufficient  the  judgment  is 
treated  as  void.'- 

]f  the  record  states  that  the  court  acquired  jurisdiction 
of  the  defendant,  or  even  if  it  is  silent  on  that  subject, 
jurisdiction  will  always  be  presumed. "^  In  most  States  the 
presumption  is  conclusive,^  but  in  some  a  collateral  attack 
may  be  made:  and  if,  from  such  attack,  it  appears  that  the 
defendant  was  never  brought  before  the  court  the  judg- 
ment will  be  held  void."  In  a  majority  of  the  States,  if  the 
proceeding  is  under  some  special  statute  and  in  derogation 
of  the  common  law,  the  jurisdictional  presumptions  in 
favor  of  a  court  of  record  are  not  indulged.  The  inquiry 
must  be  conducted  as  though  the  court  were  not  a  court  of 

1  Bradley  v.  Drone.  187  111.  175,  79  Am.  St.  Kep.  214. 

-  Hobby  V.  Bunch,  S3  Ga.  1,  20  Am.  St.  Rep.  301. 

■^  Freeman  on  .ludgments,  sees.  131,  132,  134;  Bank  of  Colfax  v.  Rich- 
ardson, 34  Or.  518,  75  Am.  St.  Rep.  OGS;  liams  v.  Root,  22  Tex.  Civ. 
App.  413. 

MVhite  V.  Simpson,  124  Ala.  238;  Dyer  v.  Leach,  91  Cal.  191, 
25  Am.  St.  Rep.  171;  Brown  v.  Wilson,  21  Colo.  309,  52  Am.  St. 
Rep.  228;  Kingman  v.  Taulson,  126  Ind.  507,  22  Am.  St.  Rep.  611, 
Bank  of  Colfax  v.  Richardson,  34  Or.  518,  75  Am.  St.  Rep.  669;  Hoag- 
land  V.  Hoagland,  19  Utah.  103;  Amy  v.  Amy,  12  Utah,  310;  Williams  v. 
Haynes,  77  Tex.  282,  19  Am.  St.  Rep.  752;  Freeman  on  Judgments,  sec. 
130. 

■•  Freeman  on  .Judgments,  sec.  133. 

32 


VOID    JUDICIAL    SALES.  §    8 

record.^  If  the  court  is  one  not  of  record,  great  care  must 
must  be  taken  to  ascertain  that  every  act  essential  to  juris- 
diction has  been  performed,-  and  performed  in  a  proper 
manner.^  No  presumptions  are  indulged  in  favor  of  the 
jurisdiction  of  a  court  not  of  record.  Its  jurisdiction  must 
always  appear  affirmatively.*  According  to  many  of  the 
authorities  it  must  appear  from  the  papers,  files  and  pro- 
ceedings in  the  case.^  On  the  other  hand,  the  fact  that 
these  show  jurisdiction  is  not  conclusive.  They  are  not 
records  importing  absolute  verity.  They  may  be  contra- 
dicted.^ The  courts  having  the  administration  of  the 
estates  of  the  deceased  or  of  incompetent  persons  are, 
in  some  States,  of  general,  and  in  others  of  limited  or 
special,  jurisdiction.  Probably,  in  the  raajorit}^  of  the 
States,  they  are  of  the  latter  class.  Where  this  is  the  case, 
he  who  claims  title  under  these  courts  must  show  affirma- 
tively (and  generally  fi'om  their  records  and  files)  the  tak- 
ing of  every  step  essential  to  jurisdiction.^  Nothing  will 
he  presumed  in  his  favor.  But  in  several  of  the  States 
these  courts  arc  either  courts  of  record,  or  are  by  statute 
placed  on  the  same  footing  as  courts  of  record,  with  refer- 
ence to  jurisdiction,  and  are  presumed  to  have  acquired 
jurisdiction  over  all  parties  in  interest,  except  where  their 
records  and  proceedings  indicate  the  contrary'. *^ 

'  lb.,  sees.  123,  127;  Beckett  v.  Cuenin,  in  Colo.  281,  22  Am.  St.  Rep. 
:^99;  Laney  v.  Garbee,  10.5  Mo.  30.o,  24  Am.  St.  Rep.  391 ;  Coffin  v.  Bell, 
22  Nev.  169,  58  Am.  St.  Rep.  738;  Willamette  R.  R.  Co.  v.  Hendrix,  28 
Or.  485,  .52  Am.  St.  Rep.  800. 

2  Freeman  on  Judgments,  sec.  517. 

■'  Freeman  on  .Judgments,  sec.  521. 

*  Freeman  on  .Judgments,  sees.  517,  527. 

*  Freeman  on  Judgments,  see.  518. 
"  Freeman  on  .Fudgments,  sec.  517. 

"  Gwin  V.  McCarroll,  1  S.  &  M.  3.51;  Rigney  v.  Coles.  0  Bosw.  479; 
Fell  V.  Young,  03  111.  lOG;  Taylor  v.  AValker,  1  Ileisk.  734 ;  Gibbs  v. 
Shaw,  17  Wis.  201,  84  Am.  Dec.  737;  Root  v.  McFerrin,  37  Miss.  17,  75 
Am.  Dec.  49. 

"  Doe  V.  Bowen,  8  Ind.  197,  05  Am.  Dee.  758;  Gerrard  v.  Johnson,  12 


^     <»  VOID    .HDHIAI.    SALES. 

Tho  |)ivsuiui)rK)n  ill  favor  of  jurisdiction  ma^^  go  further 
than  iiiorc'ly  roiuloring  unnoccssarv  the  proof  of  the  service 
of  notice  or  of  process.  An  inspection  of  the  papers  re- 
niaininir  among  the  tiles  of  the  court  niav  not  be  rewarded 
by  the  discovery  of  any  petition  for  the  sale,  or  may  dis- 
close the  fact  that  some  other  essential  writing  is  not  to  be 
found.  AVhere  the  court  is  deemed  to  be  one  of  general 
jurisdiction,  the  presumption  is  indulged  that  the  missing 
document  oriuinallv  existed  and  was  sufficient  in  form,  and 
that  it  has  been  lost  from  the  files. ^  If  a  long  period  has 
elapsed  between  the  date  of  a  judicial  or  execution  sale  and 
the  time  when  its  validity  is  (]uestioned,  the  presumption 
that  the  court  and  its  officers  did  their  duty  is  usually  in- 
dulged, and  the  sale  is  upheld  notwithstanding  there  is  no 
direct  or  positive  evidence  of  the  existence  of  certain  acts 
prescribed  by  law.^ 

ORDERS  OF  SALE  IN  PROBATE,  AND  HOW  AUTHORITY  TO  MAKE 
MUST    BE    OBTAINED. 

§  9.  Probate  Sales  without  License  of  the  Court;  when 
Valid  and  when  A^oid. — In  execution  and  chancery  sales, 
jurisdictional  infjuirics  need  to  be  prosecuted  with  much  less 
care  and  frequency  than  in  the  consideration  of  sales  made 
by  executors,  administrators  or  guardians.  In  a  suit  in 
equity,  or  an  action  at  law,  if  the  complaint  discloses  a 
cause  which  the  court  was  competent  to  entertain   and  de- 

Ind.  G3G ;  Doe  v.  Harvey,  3  Ind.  104 ;  Spauldino^  v.  Baldwin,  31  Ind.  376 ; 
Valle  V.  Fleming,  19  Mo.  454,  01  Am.  Dec.  5G6;  Tucker  v.  Harris,  13 
Ga.  1,  58  Am.  Dec.  488;  Brown  v.  Redwyn,  16  Ga.  7');  Wood  v.  Craw- 
ford, 18  Ga.  526;  Davie  v.  McDaniel,  47  Ga.  200;  Jones  v.  Edwards,  78 
Ky.  6;  Field  v.  Peebles,  180  111.  376;  Templeton  v. Ferguson,  89  Tex.  47. 

1  Doolittle  v.  Holton,  28  Vt.,819,  67  Am.  Dec.  745;  Hurley  v.  Bar- 
nard, 48  Tex.  83;  Alexander's  Heirs  v.  Maverick,  18  Tex.  179.  67  Am. 
Dec.  693. 

-  Seward  v.  Dideen,16  Xeb.  58,  20  X.  W.  Rep.  12;  Whitman  v.  Fisher, 
74  111.  147;  Stevenson's  Heirs  v.  McEeary,  18  S.  &  M.  9,  51  Am.  Dec. 
102;  Clark  v.  Hellis.  134  Ind.  421;  Field  v.  Peebles,  ISO  111.  376;  Cassell 
v.  Joseph,  184  HI.  378;  Bray  v.  Adams,  114  Mo.  486. 

;54 


VOID    JUDICIAL    SALES.  §    9 

cide,  aod  the  record  shows  that  jurisdiction  was  obtained 
over  the  persons  of  the  defendants,  it  is  generally  safe  to 
forego  all  further  jurisdictional  inquiries.  But  in  probate 
proceedings  jurisdictional  inquiries  are  material  at  almost 
every  stage,  and  to  be  inattentive  to  them  is  to  be  guilty 
of  rash  imprudence.  The  application  for  letters  testa- 
mentary, or  of  administration,  the  citation  to  the  parties  in 
interest,  the  hearing  of  the  proofs  and  the  order  made 
thereon,  correspond  substantially  to  the  complaint,  the  issue 
and  service  of  process,  and  the  trial  and  judgment  at  law. 
But  here  the  case  at  law  ends,  while  the  case  in  probate  is 
but  scarcely  commenced.  What  makes  the  probate  pro- 
ceeding still  more  perilous  is,  that  a  clear  case  of  jurisdic- 
tion at  this  stage  is  not  sufficient  to  support  subsequent  pro- 
ceedings tending  to  devest  the  title  of  the  heirs.  At  each 
subsequent  stage,  where  the  interest  of  the  heir  is  sought 
to  be  affected,  petitions  and  citations  are  usually  exacted; 
and,  in  most  courts,  are  treated  as  being  jurisdictional  in 
their  nature. 

In  some  circumstances  an  executor,  administrator  or 
guardian,  may  sell  property  without  obtaining  leave  from 
the  court.  "Where  the  statute  has  not  adopted  a  different 
rule,  ''the  whole  personal  estate  of  the  testator  or  intestate 
rests  in  his  executor  or  administrator;"^  and  "an  executor 
or  an  administrator  has  an  absolute  power  of  disposal  over 
the  whole  personal  effects  of  the  testator  or  intestate,  and 
they  cannot  be  followed  by  creditors,  much  less  by  legatees, 
either  general  or  special,  into  the  hands  of  an  alienee.  The 
l)rinciple  is,  that  the  executor  or  administrator,  in  many 
instances,  must  sell  in  order  to  perform  his  duty  in  paying 
debts,  etc.,  and  no  one  wouhl  deal  with  him  if  liabk;  after 
wards  to  be  called  to  an  account."'^     Interests  in  real  prop- 

J  Lomax  on  Executors  (2d  Ed.).  3G7;  Goodwin  v.  Jones,  3  Mass.  51S, 
3  Am.  Dec.  173;  JIayes  v.  Jackson,  0  Mass.  I.j2;  Sneed  v.  Hooper,  Cooke, 
200,  .">  Am.  Dec.  001 ;  Tetrie  v.  Clark,  11  S.  &,  U.  377.  M  Am.  Dec.  l)3(i. 
and  note. 

2  J.omax  on  p:xecutor.s  (2d  Ed.),  5(50;  reterson  v.  Chemical  Bank.  32 

3j 


§    ;»  VOID    JUDICIAL     SALES. 

ortv  loss  than  freehold  could,  by  the  common  law,  be  dis- 
posed of  by  an  executor  or  administrator  to  the  same 
extent  as  other  chattel  interests.^  When  the  power  of  an  ex- 
ecutor or  administrator  to  dispose  of  personal  effects  of  the 
testator  or  intestate  is  spoken  of  as  absolute,  it  is  not  in- 
tended to  assert  that  its  exercise  can,  under  no  circum- 
stances, be  questioned.  Where  the  disposition  is  in  bad 
faith,  or  for  an  unauthorized  purpose,  the  executor  or  ad- 
ministrator may,  by  proper  proceedings,  be  held  answera- 
I)le  to  those  injured  thereby. ^  If,  however,  he  is  charge- 
able with  notice  that  the  disposition  was  for  an  improper 
l)urpose,  he  may  doubtless,  if  necessary,  be  held  account- 
able for  the  property.  It  is  true  there  are  decisions  treat- 
ing such  sales  as  void,  and  sustaining  a  recovery  of  the 
property  from  the  transferee.^  By  the  common  law,  how^- 
ever,  we  think  that  such  sales  were  never  void  in  the  proper 
sense  of  that  term,  and  that  the  remedy  of  heirs,  legatees, 
and  others  entitled  to  complain  thereof,  was  restricted  to 
suits  in  equity.* 

Where  the  common-law  rules  upon  the  subject  still  pre- 
vail, a  guardian,  though  not  vested   with  any  estate  in  the 

X.Y.21.SSAm.Dec.29S:  Overfleld  v.  Bullitt,  1  Mo.  749;  Williamson  v. 
Branch  Bank,  7  Ala.  900;  Bland  v.  Muncaster,  24  Miss.  62,  57  Am.  Dec. 
1(}2;  Nugent  v.  Gifford,  1  Atk.  463;  Jelkev.  Goldsmith,  54  Ohio  St.  499, 
49  Am.  St.  Rep.  730;  Grimes  v.  Pennsylvania  R.  R.  Co.,  189  Pa.  619,  66 
Am.  St.  Rep.  830 ;  Heming  v.  Hawkins,  102  Wis.  56,  72  Am.  St.  Rep.  863. 
An  administrator  may  sell,  without  an  order  of  court,  a  term  of  999 
years,  for  that  is  personalty  (Petition  of  Gay,  5  Mass.  419) ;  but  not  the 
estate  of  a  mortgagee,  for  that  is  realty.    Ex  parte  Blair,  13  Met.  126. 

'  Amory  v.  Francis,  16  Mass.  308;  Billingham  v.  Jenkins,  7  Sm.  &  M. 
479;  Schouler's  Executor  and  Administrator,  §  353. 

^  Field  V.  Schieffelin,  7  Johns.  Ch.  1,50,  11  Am.  Dec.  441;  Thomas 
V.  White,  3  Litt.  177.  14  Am.  Dec.  56. 

3  Luke  V.  Marshall,  5  J.  J.  Marsh.  353;  Clark  v.  Coe,  52  Hun,  379, 
0  N.  Y.  Supp.  243;  Warren  v.  Union  Bank,  157  JST.  Y.  259,  68  Am.  St. 
Rep.  777. 

^  Schouler's  Ex.  &  Ad.,  §§  359,  360;  Hagthorp  v.  Neale,  7  Gill  &  J. 
13,  26  Am.  Dec.  594;  Herron  v.  Marshall,  5  Humph.  443,  42  Am.  Dec. 
444. 

36 


VOID    JUDICIAL    SALES.  §     0 

personal  property  of  his  ward,  has  an  ample  power  of  dis- 
position over  it.  "Though  it  be  not  in  the  ordinary  course 
of  the  guardian's  administration  to  sell  the  personal  prop- 
erty of  his  ward,  yet  he  has  the  legal  right  to  do  it,  for  it  is 
entirely  under  his  control  and  management,  and  he  is  not 
obliged  to  apply  to  court  for  direction  in  every  particular 
case.  The  question  as  to  the  due  exercise  of  the  power 
arises  between  the  guardian  and  his  ward;  and  I  apprehend 
that  no  doubt  can  be  entertained  as  to  the  competency  of 
the  guardian's  power  over  the  disposition  of  the  personal 
estate,  including  the  choses  in  action,  as  between  him  and 
a  bona  Jidt  purchaser."^ 

Executors  may,  at  the  common  law  and  under  the  stat- 
utes of  most  of  our  States,  sell  real  estate  devised  to  them 
or  over  which  the  will  give  them  a  power  of  sale.-  Nor 
need  this  power  of  sale  be  conferred  in  express  terms.  It 
must  be  inferred  when  the  testator  directs  his  real  estate 
to  be  sold,  without  declaring  by  whom  the  sale  shall  be 
made,  that  he  intended  the  power  to  be  exercised  by  his  ex- 
ecutor, if  the  proceeds  of  the  sale  arc  by  the  provisions  of 
the  will  or  by  the  rules  of  law  to  be  distributed  or  paid  out 
by  such  executor.-'  And  generally  where  a  testator  imposes 
upon  his  executor  trusts  to  be  executed  or  duties  to  be  per- 
formed which  cannot  be  executed  nor  performed  without 
an  estate  in  his  lands  or  a  power  of  sale,  although  no  estate 
or  power  is  given  expressly  by  the  will,  the  executor  takes, 
bv   implication,  an    estate   in  the  lands,  or  at  least  a  power 

'Field   V.   Schieffelin,   7  Johns.  Cb.  ina.   11  Am.  Dec.  441 :  Tattle  v. 
Heavy.  .')()B;nb.  334;  Tyler  on  Infancy  and  Coverture.  2G1 -2;  Thonip- 
.son   V.   Boardman.  1  Vt.  307,  18  Am.  Dec.  (384;    Truss  v.  Old,  G  Rand. 
5r)t).  IS  Am.  Dec.  784. 

•  Lomax  on  Executors  (2d  Ed.),  384,  402.  .')()0,  and  authoritifi  in  the 
nest  two  citations;  Munson  v.  Cole,  98  Ind.  rj02;  Magruder  v.  Peter,  11 
Gill  &  J.  217;  Brooks  v.  Bergner,  83  Md.  352;  Rogers  v.  Jones  13  Tex. 
Civ.  App.  4.53. 

3  Davis  V.  Hoover,  112  Ind.  423;;Rankin  v.  Rankin.  ;?i;  111.  203.  87  Am. 
Dec.  20."),  and  note. 

37 


§    ;)  VOID    JUDICIAL    SALES. 

sutru-iont  to  i'nal)K'  him  to  execute  thclnisls  or  i)ei-fonn  the 
duties  iuii>ose(l  upon  liiiu,  and  in  either  event  he  may  con- 
vev  the  leuai  title.'  A  mere  direction,  however,  to  an  ex- 
ecutor tt)  pay  debts,  or  a  charuing  them  upon  hinds,  does 
not  create  a  power  of  sale  which  may  be  exercised  by  him."-^ 

Ill  Minnesota  it  has  been  held  that  an  executor  under  a 
foreign  will  who  has  qualiticd  at  the  foreign  domicile  may, 
subject  to  the  interests  of  local  creditors,  exercise  a  power 
of  sale  conferred  by  the  will,  and  that  this  sale  must  be 
regarded  as  valid  when  the  will  is  also  admitted  to  pro- 
bate in  the  State  of  Minnesota.'^  We  think  that  the  more 
correct  view  of  this  subject,  however,  is  that  "so  far  as 
concerns  the  realty,  a  will,  beyond  the  jurisdiction  where 
it  is  probated,  is  inoperative  and  has  no  extraterritorial 
force  or  validity;  and  the  executor  of  such  will  cannot, 
because  of  his  appointment  in  accordance  with  the  laws  of 
one  State,  thereby  acquire  authority  to  sue  for,  or  in  any 
manner  intermeddle  with,  the  property  or  effects  of 
his  testator,  whether  real  or  personal,  in  another  State, 
unless  the  will  be  there  proven;  or  the  laws  of  such  State, 
dispensing  with  the  probate  anew,  confer  the  requisite  per- 
mission." * 

A  sale  may  be  made  b}'  an  executor  assuming  to  exercise 
the  power  conferred  by  the  will  when  the  will  does  not  con- 
fer such  power,  or  does  not  confer  it  to  be  exercised  for 
the  purposes  for  which  the  sale  was  made.  Necessarily  the 
purchaser  must  take  notice  of  the  terms  of  the  will,  and  if 
they  fail  to  create  any  power  the  sale  must  be  absolutely 

1  Diivis  V.  Hoover,  112 Ind.  423;  Lindley  v.  0"Reilley,  SOX.  J.Law,  636, 
7  Am.  St.  Rep.  802. 

2  Williams  v.  Williams,  49  Ala.  439;  Hill  v.  Den,  54  Cal.  6;  Huse  v. 
Den,  8.5  Cal.  390,  20  Am.  St.  Rep.  232;  In  re  Fox,  52  IST.  Y.  530, 
n  Am.  Rep.  751;  Worley  v.  Taylor,  21  Or.  589,  28  Am.  St.  Rep. 
771. 

■^  Babcock  v.  Collins,  GO  Minn.  73,  51  Am.  St.  Rep.  503. 
••  Cabbane  v.  Skianer,  56  Mo.  367;    Emmons  v.  Gordon,  140  Mo.  490, 
62  Am.  St.  Rep.  734. 

38 


VOID    JUDICIAL    SALES.  §    9 

void.^  So  thouofh  11  power  of  sale  is  created  by  the  will,  it 
can  be  exercised  only  upon  the  conditions  and  for  the  pur- 
poses therein  stated,  and  if  the  purchaser  is  chargeable 
with  notice  that  it  has  been  attempted  to  be  exercised  for 
some  other  purpose  or  upon  some  other  condition,  the  exec- 
utor's conveyance  to  him  can  transfer  no  title.^  It  has 
been  said  that  when  the  will  authorizes  an  executor  to  sell 
lands  for  the  sole  purpose  of  paying  debts,  the  purchaser 
must  show  that  debts  then  existed;'^  but  the  better  rule  is 
that  one  purchasing  under  a  power  in  a  will  has  the  right 
to  presume  that  the  executor  is  acting  in  good  faith, ^  and 
is  not  bound  to  examine  the  accounts  for  the  purpose  of 
determining  whether  a  necessity  existed  for  the  exercise  of 
the  power  ;^  nor  is  he  bound  after  the  sale  to  see  to  the 
proper  application  of  the  purchase  money/' 

The  [)ower  of  a  testator  to  authorize  his  executor  to  sell 
his  real  or  personal  estate  without  applying  to  court  for 
permission  is  generally  conceded,  though  in  some  of  the 
States  such  sales  must  be  reported  to  and  approved  b}'  the 
court.'  The  nomination  of  certain  per.sons  as  executors, 
and  investing  them  with  power  to  sell  the  the  testator's  real 
estate  at  their  discretion,  and  without  any  license  from  the 

»  Huse  V.  Den,  85  Cal,  3S0,  20  Am.  St.  Rep.  232;  Frost  v.  Atwood,  73 
Mich.  67,  16  Am.  St.  Rep.  .500;  Gay  v.  Grant,  101  X.  C.  206. 

?  In  re  McComb,  117  X.  Y.  378;  Smith  v.  Henning,  10  W.  Va.  59G. 

^  McCown  V.  Terrell,  9  Tex.  Civ.  App.  66. 

■•  Davis  V.  Christian.  15  Gratt.  1. 

*  Wright  V.  Zeigler,  1  Kelly,  324:  Rutherford's  Heirs  v.  Clark's  Heirs, 
4  Bush.  27;  Holman  v.  McKinney,  3  .1.  .1.  Marsh.  246;  Scudder  v.  Stout, 
10  X.  .7.  Eq.  327;   Ilomniy  v.  Hawkins.  102  Wis.  5(!.  72  Am.  St.  Rep.  863. 

"  Munson  v.  Cole,  !J8  Ind.  502;  Hughes  v.  Tabt,  78Ioua,  315;  Seldnerv. 
MeCreery,  78  Md.  287;  Barnes  v.  Trenton  G.  L.  Co.,  27  X.  J.  Eq.  23; 
Meeks  v.  Thompson,  8  Gratt.  34,  56  Am.  Dec.  134;  Davis  v.  Christian, 
15  Gratt.  1. 

'  Delaney's  Estate,  49  Cal.  77;  .lackson  v.  Williams,  50  Ga.  553;  Dur- 
ham's Estate,  49  Cal.  491;  Crusoe  v.  Butler,  36  Miss.  170;  Bartlett  v. 
Suthf-rland,  24  Miss.  395;  Going  v.  Emery,  16  Pick.  107,  26  Am.  Dec. 
645;  I'ayne  V.  Payne.  18  Cal.  291 ;  Larco  v.  ( 'asaneuava,  30  Cul.  .567; 
Cal.  (ode  C.  P..  §  1.561 ;   Ogle  v.  Reynolds.  75  Md.  145. 

a9 


5    0  VOID    JUDICIAL    SALES. 

court.  Indicates  that  the  testator  has  unusual  confidence 
m  the  fitlehty  and  sagacity  of  the  persons  so  nominated 
and  empowered.  This  unusual  and  somewhat  irresponsible 
authority  may.  in  the  judgment  of  the  testator,  be  safely 
anil  even  advantageously  conferred  on  the  executors  named 
in  the  Avill.  but  it  is  hardly  probat)le  that  he  would  wish  to 
see  any  other  persons  invested  with  it.  Hence,  where  per- 
sons named  as  executors  and  invested  with  powers  of  sale 
have  declined,  or  been  unable  to  act,  it  has  been  held  that 
the  special  confidence  reposed  in  them  by  the  will  could  not 
be  vested  in  any  other  person,  and  that  the  administrator 
with  the  will  annexed  had  no  power  to  make  sales,  except 
by  permission  of  the  court. ^  That,  in  some  cases,  a  power 
of  sale,  vested  by  the  will  in  an  executor,  does  not,  in  the 
event  of  his  death,  resignation  or  failure  to  qualify,  vest 
in  the  administrator  Avith  the  will  annexed  is  established 
by  a  very  decided  preponderance  of  the  authorities,  and  is 
perhaps  not  necessarily  inconsistent  with  any  of  the  CAses. 
If  the  executor  is  merely  invested  with  a  discretion  to  sell 
if  he  thinks  best  so  to  do,  this  discretionary  power  cannot 
be  exercised  b}^  an  administrator  with  the  will  annexed.^ 
If,  on  the  other  hand,  executors  are  directed  to  sell,  so  that 
it  would  be  impossible  to  accomplish  the  designs  of  their 
testator  otherwise  than  by  sale,  it  is  quite  clear  that  he  did 
not  choose  them  for  the  purpose  of  having  the  benefit  of 
their  judgment  in  determining  whether  or  not  there  should  be 
any  sale  ;  and  there  seems  to  be  no  reason  why  his  direction 
to  sell  may  not  be  executed  by  part  of  his  executors  if  some 

1  Xicoll  V.  Scott,  99  111.  ,529;  Penn  v.  Folger,  77  111.  App.  365;  Tippett 
V.  Mize,  30  Tex.  361,94  Am.  Dec.  314;  Brown  v.  Hobson,  3  A.K.  Marsh. 
380,  13  Am.  Dec.  187;  Lockwood  v.  Stradley,  1  Del,  Ch.  298,  12  Ara. 
Dec.  97;  Conklia  v.  Edgerton,  21  Wend.  430;  Dunning  v.  Ocean  Nat. 
Bank,  61  N.  Y,  497,  19  Am.  Rep.  293;   Cooke  v.  Flatt,  98  N.  Y.  35. 

-  See  authorities  in  preceding  citation.  Bigelow  v.  Cady,  171  111.  229, 
63  Am.  St.  Rep.  230;  Gambell  v,  Trippe,  75  Md.  252,  32  Am.  St.  Rep. 
388;  Sites  V.  Eldredge,  45  N,  ,T.  Eq,  632.  14  Am.  St.  Rep.  769;  note  ta 
Crouse  v.  Peterson,  80  Am.  St.  Rep.  96  to  123, 

40 


VOID    JUDICIAL    SALES.  §    9 

of  them  fail  to  (qualify,  or,  after  (jualifying,  from  any  cause 
become  incompetent  to  act,^  or  by  an  administrator  with 
the  will  annexed,  in  case  all  the  executors  should  resign  or 
become  disqualitied  or  unable  to  act.^ 

Except  where  authorized  to  do  so  by  a  will,  or  by  some 
statute,  neither  an  administrator,  an  executor,  nor  a  guard- 
ian can  sell  real  estate  without  a  license  or  order  of  sale 
from  the  court.  A  sale  made  without  such  license  or  order 
of  court  is  not  a  mere  error  or  irregularity  which  must  be 
objected  to  by  some  proceeding  in  the  court  where  the 
license  ought  to  have  been  sought  and  granted;  and,  which, 
if  not  so  objected  to,  is  waived  or  ratified.  It  is  a  proceed- 
ing without  any  legal  support.  A  conveyance  made  in  pur- 
suance of  it  has  no  force  whatever.  It  may  be  shown  to 
be  void  when  collaterally  attacked.  In  fact,  no  attack,  col- 
lateral or  otherwise,  need  be  made.'^  The  claimant  under 
the  sale  could  not  show  a  prima  facie  case.  In  many  of 
the  States  the  power  of  guardians,  executors  and  adminis- 
trators over  personal  property  does  not  extend  to  its  trans- 
fer without  leave  of  the  court.       An    attempted  transfer 

J  Taylor  v.  Gi>llo\vay,  1  Ohio,  232.  13  Am.  Dec.  605;  Zebach  v.  Smith, 
3  Bin.  (ii),  Ty  Am.  Dec.  3r)2;  Marr  v.  Peay.  2  Miirph.  84,  5  Am.  Dec.  521; 
Xelson  V.  Carrington,  4  Munf.  332,  (J  Am.  Doc.  519;  note  to  Grouse  v. 
Peterson.  80  Am.  St.  Rep.  9(3  to  123. 

■  Peebles  v.  Watts'  Adnir.,  9  Dana,  103,  33  Am.  Dec.  531 ;  Kidwell  v. 
Brummagim,  32  Cal.  438;  Steele's  Kx.  v.  Moxley,  9  Dana,  139;  Gulley 
V.  Prather,  7  Bush,  167;  Gaines  v.  Fenter,  82  Mo.  497;  Bailey  v.  Brown, 
9  R.  I.  79;  Brown  v.  Armistead,  G  Rand.  594;  Evans  v.  Chew,  71  Pa.  St. 
47;  Mott  V.  Ackerman,  92  X.  Y.  539;  Sandifer  v.  Grantham,  02  Miss. 
412. 

^  Tippett  v.  Mize,  30  Tex.  301 ;  Beard  v.  Rowan.  1  McLean,  135;  Rob- 
inson V.  Martel,  11  'I'ex.  149;  Low  v.  Purdy,  2  Lans.  422;  Anderson  v. 
Turner,  3  A.  K.  Marsh.  131 ;  French  v.  Currier,  47  N.  11.  88;  llite  v. 
Taylor,  3  A.  K.  Marsh.  3.53;  Goforth  v.  Lono;\vorth,4  Ohio,  129,  19  Am. 
Dec.  588;  Jackson  v.  Todd,  1  Dutch.  121;  (Jelstrop  v.  Moore,  20  Miss. 
206,  59  Am.  Dec.  254;  Bell's  Appeal,  60  Pa.  St.  498;  Evans  v.  Snyder, 
64  Mo.  510;  Walbridge  v.  Day,  31  111.  379,  83  Am.  Dec.  227;  Huse  v. 
Den,  85  Cal.  390,  20  Am.  St.  Rep.  232;  Frost  v.  Atwood.  73  Mich.  67,  16 
Am.  St.  Rep.  .500;  Bartley's  Heirs  v.  Harris,  70  Tex.  181  ;  Gay  v.  Grant, 
101  X.  C.  200;  Tail  v.  Norton,  94  U.  S.  740. 

41 


§    0(/  VOID    JUDICIAL    SALES. 

lUMtlo  wilhoul  siu-h  le:ive  is,  in  such  States,  voicl.^  It  has 
boon  hold,  howovcr,  that  a  statute  authorizing  an  adminis- 
tnitor  to  apply  for  and  obtain  an  order  authorizing  his  sale 
of  {lorsonal  property  is  not  restrictive,  and  does  not  deprive 
him  of  his  coninion-hnv  authority  to  make  sales  without 
lirst  sooUing  the  (lirection  of  tlie  court. - 

§  9a.  What  Property  may  be  Subject  to  an  Effective 
Executor's  or  Administrator's  Sale  must  be  ascertained 
bv  consulting  the  statute  under  which  it  is  claimed  to  have 
been  authorized.  The  general  policy  of  the  statutes  upon 
the  subject  is  to  authorize  sales  of  all  the  property  of  dece- 
dents in  which  they  had  any  beneficial  interest  without  re- 
gard to  the  character  either  of  the  property  or  of  their  in- 
terest therein.-^  The  interest  must,  however,  as  is  already 
suggested,  be  l)eneticial.  Hence,  if  a  decedent  held  it 
merely  as  a  trustee  for  another,  its  sale  by  his  executor  or 
administrator  is  not  authorized,^  and  if  it  were  held  by  the 
decedent  partly  in  his  own  right  and  partly  in  trust,  the 
effect  of  the  sale  must  be  restricted  to  his  beneficial  inter- 
est."^ The  property,  whether  real  or  personal,  may  be  situ- 
ate in  any  part  of  the  State,  for  a  court  which  has  jurisdic- 
tion to  grant  letters  testamentary  or  of  administration 
within  a  State  is  usually  given  authority  over  all  the  prop- 
erty of  the  decedent  therein,  and  hence  may  authorize  the 
sale  thereof  though   it  is  situate  in  another  county  or  dis- 

1  Kendall  v.  Miller,  9  C'al.  591;  De  La  Montagnie  v.  Union  Ins.  Co., 
4-2  Cal.  291:  Wells  v.  Chaffin,  GO  Ga.  677;  Estate  of  Eadovich,  74  Cal. 
536,  5  Am.  St.  Rep.  466;  Citizens'  etc.,  Co.  v.  Robbing,  128  Ind.  449,  25 
Am.  St.  Rep.  445;  Wilkinson  v.  Ward,  42  111.  App.  541;  Hull  v.  Clark, 
14  Sm.  &  M.  187;  Rhame  v.  Lewis,  13  Rich.  Eq.  269.  Where  there  is  a 
valid  order  of  sale,  the  sale  of  any  parcel  of  land,  in  addition  to  the 
lands  described  in  such  order,  is  without  any  authority  of  law,  and  is, 
therefore,  absolutely  void.    Burbank  v.  Senimes,  99  U.  S.  138. 

-  Newell  V.  West,  13  Blatch.  114. 

^  Spence  v.  Parker,  57  Ala.  196. 

*  Newell  v.  Montgomery,  30  111.  App.  48,  129  Til.  58. 

*  Appeal  of  McCormick,  57  Pa.  St.  54,  98  Am.  Dec.  191. 

42 


VOID    JUDICIAL    SALES.  §    9« 

tiict.^  On  the  other  hand,  it  is  not  essential  that  the  estate 
of  the  decedent  be  one  recognized  by  hiw.  It  may  be  an 
<'(juitable  estate  merely.-  Though  the  law  of  the  State  pro- 
iiibits  the  sale  of  lands  adversely  held,  the  inhibition  does 
not,  it  is  believed,  apply  to  sales  by  executors  or  adminis- 
tators.-^ 

A  conveyance  made  for  the  puipose  of  hindering,  delay- 
ing or  defrauding  the  creditors  of  the  grantor  may  by 
them,  for  most  purposes,  be  treated  as  void.  Hence  they 
mav  proceed  under  a  writ  against  the  grantor  to  levy  upon 
and  sell  such  property  as  if  no  conveyance  thereof  had  been 
attempted,  and  the  purchaser  at  an  execution  sale  acquires 
the  legal  title. ^  An  executor  or  administrator  represents 
the  creditors  of  the  decedent,  and  may,  in  a  majority  of  the 
States,  maintain  suits  to  vacate  fraudulent  transfers  made 
by  the  decedent  when  such  vacation  is  essential  to  the  pro- 
tection of  his  creditors;''  but  we  think  an  executor  or  ad- 
ministrator cannot  treat  such  transfers  as  void,  and  l)y  sell- 
ing the  property  in  disregard  thereof  vest  the  purchaser 
with  the  legal  or  any  title  thereto,''  In  some  of  the  States, 
however,  an  executor  or  administrator  is  by  statute  author- 
ized to  sell  lands  fraudulently  transferred  by  a  decedent, 
and  may  either  sue  for  their  recovery  or,  without  such  suit, 
make  a  sale  thercMjf,  and  vest  his  rights   in    the  purchaser,' 

J  Gordon  V.  Uowell.  S."!  Ark.  3S1 :  Vail  v.  I'inehart,  105  Ind.  0;  Van 
Horn  v.  Ford.  IG  Iowa,  578;  Land  v,  Xelson,  79  Pa.  St.  407. 

2  llvans  V,  Matibews.  8  Ala.  99;  Valle  v.  Bryan,  19  Mo,  423;  Biggs  v, 
liickel.  12  Ohio  St.  49;  Appeal  of  Horner,  :)6  Pa.  St.  40.5. 

"  Herbert  v.  Herbert,  Breese.  354.  12  Am.  Dec.  192:  ;>[ereier  v.  Ster- 
lin.  5  La.  472;  Knowlt-s  v.  Blodgett.  15  R.  L  463,  2  Am.  St.  Rep.  913. 
Contra:  Weitman  v.  Tblot.  (54  Ga.  11 ;  Hall  v.  Armor,  US  Ga.  449;  Libby 
V.  Christy.  1  Red.  .Siir.  4<)5. 

*  Freeman  on  Executions,  j  13(i. 

*  Freeman  on  Executions,  §  431. 

«  Bottorff  V,  Covert,  90  Ind.  508;  Hall  v.  Callahan, (JO  Mo.  31G;  Spoors 
V.  Coen,  44  Ohio  St,  497. 

'•  Brown  v.  AVhitmore.  71  Me.  05;  Tenny  v.  Poor,  14  Gray.  500.  77  \m. 
Dec.  340;  McLane  v,  Johnson.  43  Vt.  48. 

4:; 


§    «)(/  VOID    JUDICIAL    SALES. 

Unless  ;in  exception  is  created  by  statute,  as  in  the  case 
of  i)ropertv  fraudulently  transferred  by  the  decedent,  it 
may  be  safely  atlirnied  that  an  executor's  or  administrator's 
sale  cannot  transfer  any  title  to  property  not  vested  in  the 
decedent  at  the  tinu>  of  his  death.  Pcrhai)s  a  further  ex- 
ception should  be  induli>ed  when,  though  the  decedent  did 
not  have  any  title  at  the  time  of  his  death,  yet  it  has,  be- 
cause of  some  right  in  him,  been  transferred  after  such 
death  to  his  personal  representative.  It  has  been  held,  how- 
ever, in  Alabama,  when  a  sale  is  made  for  the  purpose  of 
distribution,  that  the  power  of  the  probate  court  extends 
"only  to  the  title  or  estate  as  it  descended,  and  not  to  an 
after-ac(|uired  title  different  and  distinct  from  that  which 
the  intestate  had  at  the  time  of  his  death. "^  Where  a 
pre-empt ioner  or  other  person  having  some  inchoate  right 
in  public  lands  dies  before  it  is  perfected,  and  his  heirs  are 
oiven  the  right  to  take  measures  which  will  result  in  the 
issuing  of  a  patent  or  other  evidence  of  title  to  them,  there 
is  doubt  whether  the  interest  of  the  heirs  is  subject  to  dis- 
position under  any  circumstances  by  the  executor  or  admin- 
istrator, and  the  weight  of  authority,  in  our  opinion,  favors 
the  proposition  that  such  lands  are  no  part  of  the  estate  of 
the  decedent,  and  that  an}-  attempted  sale  thereof  by  his 
personal  representative,  though  apparently  authorized  by 
the  court,  is  void.'^ 

If  property  of  any  class  is  exempt  from  execution  and 
forced  sale,  and  such  exemption  continues  notwithstanding 
the  death  of  its  owner,  it  must  be  erroneous  for  any  court 
to  order  its  sale  for  the  payment   of   his  debts.     The  most 


J  .Joues  V.  Woodstock  I.  Co.,  95  Ala.  551. 

-  Burns  v.  Hamilton,  33  Ala.  210,  70  Am.  Dec.  570;  Hartley  v.  Brown, 
46  Cdl.  201;  Rogers  v.  Clemmans,  26  Kan.  522;  Coulson  v.  King,  42 
Kan.  507,  16  Am.  St.  Eep.  .503;  Delay  v.  Chapman,  3  Or.  459.  Contra: 
Moore's  Ad.  V.  Moore's  Heirs,  11  Humph.  512;  Soye  v.  Maverick,  18 
Tex.  100;  Lyne  v.  Sandford,  82  Tex.  58,  27  Am.  St.  Rep.  852;  Witten- 
brock  V.  Wheadon,  128  Cal.  1.50,  79  Am.  St.  Rep.  32. 

44 


VOID    JUDICIAL    SALES.  §    9a 

familiar  instance  of  such  exemption  exists  in  the  case  of 
homesteads,  the  sale  of  which  is  either  wholly  prohibited 
or  is  restricted  to  sales  in  payment  of  liabilities  incurred 
prior  to  the  impressing  of  the  homestead  character  upon 
the  lands  in  question.  It  is  scarcely  necessary  to  observe 
that  a  decree  directino-  the  sale  of  a  homestead,  other  than 
in  a  case  specially  authorized  by  statute,  is  erroneous.^ 
Whether  it  is  void  presents  a  more  ditficult  question.  There 
may  be  doubt  whether  a  parcel  of  real  property  is  a  home- 
stead, or,  if  it  be  a  homestead,  whether  it  is  not  subject  to 
sale  in  satisfaction  of  a  liability  existing  before  its  dedica- 
tion, and  we  know  of  no  reason  why  either  of  these  ques- 
tions may  not  be  presented  for  consideration  to  the  court 
before  which  a  petition  for  sale  is  pending  and  there  liti- 
gated and  decided  upon  the  merits,  nor,  if  so  decided,  why 
the  order  directing  the  sale  of  the  homestead  is  not  con- 
( lusive  upon  all  the  interested  parties  before  the  court. ^ 
Thus,  in  Ions  v.  Harbison,-^  where  it  was  contended  that 
property  sold  by  order  of  the  prol)ate  court  was  a  home- 
stead, and  that  the  court  therefore  "had  no  jurisdic- 
tion of  the  subject-matter  administered  upon,"  it  re- 
sponded that  the  code  of  the  State  declared  it  to  be  the 
duty  of  the  court,  if  the  homestead  had  been  selected  and 
recorded  prior  to  the  death  of  the  decedent  and  was  re- 
turned in  the  inventory,  appraised  at  not  exceeding  five 
thousand  dollars,  or  was  previously  a})praised  as  provided 
in  the  Civil  Code,  and  such  appraised  vahie  did  not  exceed 
that  sum,  by  its  order  to  set  it  over  to  the  persons  in  whom 
tlic  titk'  had  vested;  and  the  court  inferred  therefrom  that 
"it  is  therefore  clear  that  the  court  has  jurisdiction  over 
the  homestead  for  some  purposes;  and  it  seems  to  follow 
that  if  the   court,   from    ignorance  of  the  fact  that  it  was  Ji 

>  JIartiiian  v.  Schiill/.  101  111.  437;    Oettinger  v.  Specht.  1C2  111.  179; 
Ciiin  V.  Young.  1  Utah,  'M'A. 
-  Sigiiiond  V.  Bebber,  KM  Iowa.  -J-'Jl. 
^  112  Cal.  2G0. 

45 


^    []((  VOID    .lUDICIAL    SALES. 

liDinoslojul,  or  bv  inadvortunce  or  mistake  of  law  made  an 
ortlor  not  aiitliorized  by  the  statute,  its  proceedings,  how- 
over  erroneous,  would  not  be  without  jurisdiction,  and 
hence  would  be  valid  against  a  collateral  attack.  Indeed, 
the  record  of  the  probate  proceedings  docs  not  disclose  the 
fact  that  there  ever  was  a  declaration  of  homestead,  and 
therefore,  upon  the  face  of  the  record,  the  superior  court 
had  jurisdiction.  It  follows  that  if  the  administrator,  hav- 
ing failed  to  disclose  his  interest  in  the  property  under  the 
declaration  of  homestead,  had  appealed  to  this  court  upon 
the  record  of  that  case,  assuming  that  all  other  proceed- 
ings were  sufficient,  the  jurisdiction  of  that  court  must  have 
been  affirmed;  and,  if  so,  he  could  not  now  question  it." 
The  action  in  which  this  language  Avas  used  was  one  to 
quiet  title  brought  against  a  purchaser  at  an  administrator's 
sale  by  the  successor  in  interest  of  the  administrator  who 
sold  the  land.  The  property  in  question  had  belonged  to 
his  wife  who,  previously  to  her  death,  had  first  executed  a 
mortgage  upon  the  property,  and  then  filed  a  declaration  of 
homestead  in  due  form  of  law.  Her  husband,  after  receiv- 
ing his  appointment  as  her  administrator,  filed  an  inventory 
of  the  property  of  the  estate,  in  which  the  premises  in  con- 
troversy were  described,  and  soon  thereafter  he  petitioned 
the  court  for  an  order  to  sell  them  for  the  purpose  of  pay- 
ing the  mortgage  debt  thereon  and  certain  expenses  of 
administration.  The  order  of  sale  was  granted,  the  land 
sold,  and  the  sale  reported  to,  and  confirmed  by  the  court. 
After  executing  his  conveyance  as  administrator,  the  hus- 
band, for  a  nominal  consideration,  conveyed  his  interest  in 
the  property  to  the  plaintiff,  and  the  court,  in  addition  to 
resting  its  decision  upon  the  grounds  already  stated,  fur- 
ther declared  that  even  if  it  Avere  conceded  that  the  court 
had  DO  jurisdiction  and  that  the  sale  was  void,  both 
the  administrator  and  the  plaintiff  claiming  under  him, 
from  the  disclosed  facts  of  which  both  had  knowledge, 
must  be  held    estopped   from  questioning  the  purchaser's 

46 


VOID    JUDICIAL    SALES.  §    db 

title.  The  decisions  in  the  other  States  upon  this  subject, 
while  they  have  not  met  the  question  very  fairly,  certainly 
tend  to  sustain  the  conclusion  that  an  administrator's  or 
executor's  sale  of  a  homestead  will  be  held  void  in  a  collat- 
eral proceeding,  unless  it  is  there  affirmatively  shown  that 
the  debt  for  the  payment  of  which  the  sale  was  decreed 
was  contracted  before  the  homestead  right  was  acquired,  or 
that  the  question  of  the  liabilit}' of  the  property  to  sale  had 
been  presented  to,  and  considered  by,  the  court  authoriz- 
ing it  to  be  made.^ 

§  9b.  The  Time  Within  AVhich  the  Petition  May  he 
Presented  and  Properly  Granted  may  be  considered  with 
respect  (1)  to  the  cause  upon  which  it  is  founded,  and  (2) 
to  express  or  implied  limitations  upon  the  power  of  the 
court  to  proceed  unless  the  petition  is  presented  within 
some  time  speciiied,  either  after  the  granting  of  letters 
testamentary  or  of  administration,  or  of  the  accrual  of  the 
right  to  insist  upon  the  sale  of  the  property.  The  debts 
for  the  paA^ment  of  which  a  sale  of  the  property,  whether 
real  or  i)ersonal,  is  sought  may  be  barred  by  the  statute  of 
limitations.  If  so,  we  apprehend  that  this  fact  should  be 
presented  by  the  parties  in  interest  or  by  the  court  upon  its 
own  motion  as  a  reason  for  denying  the  sale,  and  if  not  so 
presented,  or  if  presented  and  erroneously  overruled,  the 
action  of  the  court  in  directing  the  sale  is  not  without  or  in 
excess  of  its  jurisdiction,  and  its  order  cannot  be  treated  as 
void.-^  If  a  claim  against  a  decedent  is  presented  to,  and 
allowed  by,  his  .executor  or  administrator  and  the  court 
having  jurisdiction  of  his  estate,  it  cannot  thereafter,  prop- 
erly speaking,  become  barred  by  the  statute  of  limitations, 
because  such  allowance  has  accomplished  all  that  could   re- 

1  Kessinger  v.  "Wilson.  o6  Ark.  400.  22  Am.  St.  Rep.  220;  Bond  v. 
Montgomery,  'Ai  Ark.  563,  35  Am.  St.  ]{ep.  119:  Kelsay  v.  Frazier,  78 
Mo.  Ill ;  Daudt  v.  Ilarman,  IG  Mo.  App.  203;  Murphy  v,  De  France, 
105  Mo.  .53:  Howe  v.  McGivern.  25  Wis.  525. 

2  Cobb  V.  (jiarner,  105  Ala.  407,  53  Am.  St.  Rep.  13G. 

47 


§     10  VOID    JUDICIAL    SALES. 

suU  from  a  .suit  uiul  a  judgment  therein  in  favor  of  the 
creditor. 1  There  is  no  doubt,  however,  that  though  no 
statute  of  limitations  has  interposed,  a  creditor  may  be 
guilty  of  such  laches  as  will  justify,  or  even  require,  the 
court  to  deny  his  application  for  the  sale  of  the  property 
for  the  purpose  of  paying  his  demand.^  The  question  of 
laches  does  not,  in  our  judgment,  go  to  the  jurisdiction  of 
the  court,  for  the  reason  that  apparent  laches  are  always 
susceptible  of  explanation,^'  though  in  one  instance  it  was 
held  that  a  delay  of  twenty-seven  years  was  so  extreme 
that  an  order  of  sale  thereafter  made  should,  in  the 
absence  of  explanation,  be  regarded  as  void.*  A  statute 
may  clearly  limit  the  power  of  the  court  by  restricting  its 
authority  to  grant  ii  license  to  sell  to  those  cases  in  which 
debts  have  been  proved  and  allowed,  or  a  petition  for  a 
sale  tiled  within  a  time  specified.  An  examination  of  the 
records  and  files  of  the  court  must,  where  such  statutes  are 
in  force,  reveal,  if  such  be  the  fact,  that  the  petition  wus 
not  based  upon  a  cause,  or  filed  within  the  time  allowed, 
and  it  may  be  that  the  action  of  the  court,  if  it  neverthe- 
less directs  a  sale,  may  properly  be  regarded  as  void.'^ 

§  10.  Petition  for  Order  of  Sale  must  be  by  a  Person 
Competent  to  Present  it. — We  now  pass  to  the  most 
numerous  class  of  probate  sales — those  which  must  be 
sanctioned   by  a   pre-existing  order  of  court.     This  order 

1  In  re  Arguello'S  Estate,  85  Cal.  151. 

2  Brogan  v.  Brogan,  63  Ark.  405,  58  Am.  St.  Kep.  124;  In  re  Crosby's 
Estate,  55  Cal.  574;  In  re  Arguello's  Estate,  85  Cal.  151;  Reed  v.  Colby, 
89  111.104;  McKean  V.  Vick,  108  111.  373;  Wingerter  v.  Wingerter,  71 
Cal.  105;  McCrary  v.  Tasker,  41  Iowa,  255;  State  v.  Probate  Court,  40 
Minn.  296;  Ferguson  v.  Scott,  49  Miss.  50;  Hatch  v.  Kelly,  63  N.  H.  29; 
Gregory  v.  Rhoden,  29  S  C.  90;  note  to  Killough  v.  Hinton,  26  Am. 
St.  Rep.  22-29. 

3  Macey  v.  Stark,  116  Mo.  481 ;  Barlow  v.  Clark,  67  Mo.  App.  340. 
*  Langworthy  v.  Baker,  23  III.  484. 

5  Tarbell  v.  Parker,  106  Mass.  347;  Edmunds  v.  Rockwell,  125  Mass. 
363;  Hoffman  v.  Beard,  32  Mich.  218;  Slocum  v.  English,  4  Thomp.  & 
C.  266,  affirmed  02  ^T.  Y.  494. 

48 


VOID    JUDICIAL    SALES.  §     10 

must,  in  turn,  be  supported  by  certain  pre-existing  facts. 
In  truth,  the  order  of  sale  bears  more  resembhmce  to  a 
judgment  obtained  in  a  new  action,  than  to  an  order  made 
in  a  pre-existing  proceeding  in  which  jurisdiction  has 
ah-eady  been  acquired.  To  obtain  an  order  of  sale,  a  peti- 
tion or  complaint  must  be  filed,  a  citation  or  notice  must 
be  issued  and  served,  and  a  complete  adversary  proceeding 
conducted.  Any  jurisdictional  defects  in  this  proceeding 
are  as  fatal  as  if  connected  with  the  original  grant  of 
administration.  And,  what  is  worse,  defects  which,  in 
actions  at  law,  would  be  treated  as  mere  errors,  are,  in 
probate  proceedings,  counted  as  incurable  jurisdictional 
iniirmities.  If  a  complaint  in  an  action  at  law,  or  in  a  suit 
in  equity,  does  not  state  facts  sufficient  to  entitle  the  com- 
plainant to  relief,  its  deficiency  must  be  pointed  out,  or  a 
judgment  or  decree  is  likely  to  be  entered,  which,  though 
reversable  on  appeal,  is  valid  until  so  reversed.  If  the 
complaint  w^ere  filed  l)v  some  one  having  no  capacity  to 
maintain  the  suit  or  action,  that  incapacity  would  be  called 
to  the  attention  of  the  court  in  some  manner;  or,  if  that 
were  not  done,  a  judgment  would  probably  be  entered  in 
favor  of  plaintiff,  and  this  judgment  Avould  not  be  void. 
But  the  presentation  of  a  petition  in  probate  by  a  person 
authorized  to  so  petition,  has  often  been  held  to  be  a  juris- 
dictional fact.  If  it  be  presented  by  some  one  not  qualified 
to  present  it,  there  is  no  jurisdiction — no  power  to  hear 
and  determine  it.  If  the  court  erroneously  grants  the 
prayer  of  the  petition  there  need  l)e  no  appeal — the  order 
is  void  and  cannot  support  a  sale.^  In  the  application  of 
this  supposed  rule  some  extreme  and,  in  our  judgment, 
al)surd  decisions  have  been  made.  Thus,  it  has  been 
afHrnjed  that  if  the  petition  for  the  appointment  of  an 
administrator  shows  that  the  applicant  is  not  one  of  the 
persons    to   whom  administration   should  be  granted,  the 

'  Miller  v.  Miller,  10  Tex.  319;  Washington  v.  McCaughan,  3J  Miss 
304. 
(4)  49 


§    10  VOID    JUDICIAL    SALES. 

court  has  no  authority  to  proceed,  and  that  its  subsequent 
grant  of  letters  of  administration  as  prayed  for  in  the  peti- 
tion, and  all  orders  of  sale,  and  sales  made  as  a  result 
thereof,  are  absolutely  void.^  In  defense  of  these  decis- 
ions it  may  perhaps  be  said  that  an  inspection  of  the  peti- 
tion or  other  papers  on  file  in  the  estate  must  show  to 
intending  purchasers  the  erroneous  action  of  the  court,  and 
hence  deprive  them  of  the  claim  of  being  purchasers  with- 
out notice  of  the  defects,  on  account  of  which  the  proceed- 
ings are  claimed  to  be  void.  In  New  York,  however,  it 
has  been  held  that  there  is  no  authority  to  appoint  a  minor 
to  the  othce  of  executrix,  and  that,  though  the  minor 
appointed  was  the  widow  of  the  decedent,  and  neither  the 
petition  nor  any  other  paper  in  the  estate  disclosed,  or  was 
required  to  disclose,  her  age,  still  that  her  appointment  and 
all  subse(|uent  proceedings  by  her,  though  sanctioned  by 
the  order  of  the  court,  A^ere  void.^  In  a  case  in  the 
Supreme  Court  of  the  United  States  it  Avas  insisted  that  a 
grant  of  administration  and  an  order  of  sale  based  on  it 
were  void,  because  no  one  Avas  entitled  to  letters  of  admin- 
istration except  the  public  administrator,  and  that  the  grant 
thereof  to  another  person  was  unauthorized  and  void,  but 
that  court  Avas  of  the  opinion  that  the  court  before  which 
the  petition  was  preferred,  ha\ing  jurisdiction  of  the  estate 
of  the  decedent,  was  competent  to  determine  all  matters 
arising  therein,  and  that  an  incorrect  determination  Avas  at 
most  an  error  to  be  corrected  only  by  appeal  or  some  like 
proceeding,  and  quoted  as  applicable  to  the  case  before  it, 
the  following  from  the  opinion  of  Mr.  Justice  Field  in 
Comstock  V.  Crawford:^  "It  is  well  settled  that  Avhen  the 
jurisdiction  of   a   court    of    limited  and  special   authority 

1  Hang  V.  Primeau,  98  Mich.  91 ;  Terapleton  v.  Falls  L.  &  C.  Co.,  77 
Tex.  55. 

2  Continental  T.  Co.  v.  Nobel,  30  N.  Y.  Supp.  994;  Knox  v.  Nobel,  27 
N.  Y.  Supp.  206,  28  N.  Y.  Supp.  355,  77  Hun,  232. 

3  3  Wall.  403. 

50 


VOID    JUDICIAL    SALES.  §     10 

appears  upon  the  face  of  its  proceedings,  its  action  cannot 
be  collaterally  attacked  for  mere  error  or  irreguhirity. 
The  jurisdiction  appearing,  the  same  presumption  of  law 
arises  that  it  was  rightly  exercised  as  prevails  with  refer- 
ence to  the  action  of  a  court  of  superior  and  general 
authoritv.  *  *  *  Whether  there  was  a  widow  of  the 
deceased,  or  next  of  kin,  or  creditor,  who  was  a  proper 
person  to  receive  letters,  if  he  had  applied  for  them,  or 
whether  there  was  any  public  administrator  in  office 
authorized  or  fit  to  take  charge  of  the  estate,  or  to  which 
of  these  several  parties  it  was  meet  that  the  administration 
should  be  granted,  were  matters  for  the  consideration  and 
determination  of  the  court;  and  its  action  respecting  them, 
however  irregular,  cannot  be  impeached  collaterally."^ 

In  the  case  of  two  or  more  acting  executors  or  adminis- 
trators, a  petition  for  an  order  of  sale,  preferred  by  any 
less  than  the  whole,  is  irregular,  but  probably  is  not  so 
worthless  that  the  court  can  base  no  valid  action  upon  it,^ 
If  the  petition  is  by  a  person  acting  as  administrator,  but 
who  has  never  qualified  as  such,^  or  is  a  special  administrator 
not  authorized  by  law  to  present  the  petition  or  make  the 
sale,^  or  it  appears  from  the  whole  record  of  the  probate 
proceedings  that  his  appointment  was  illegal,  then  the 
license   and  the  sale  based  thereon  are  both  void.^     We 

»  Simmons  v.  Saul,  138  U.  S.  439. 

2  Fitch  V.  Witbeck,  2  Barb.  Ch.  161;  Gregory  v.  McPherson,  13  Cal. 
578;  Downing  v.  Riigar,  21  Wend.  178,  3i  Am.  Dec.  223;  Stowe  v. 
Banks,  123  Mo.  »J72;  Melins  v.  Pfister,  59  Wis.  ISO.  See,  as  sustaining 
petitions  by  one  administrator  only,  Jackson  v.  Robinson,  4  Wend.  437; 
De  Bardelaben  v.  Stoudenmire,  48  Ala.  643. 

3  Pryor  v.  Downey.  50  Cal.  389,  19  Am.  Rep.  650. 
*  Long  V.  Burnett,  13  Iowa.  28,  81  Am.  Dec.  410. 

«  Frederick  v.  Pacquette,  19  AVis.  541 ;  Sitzman  v.  Pacqiiette,  13  Wis. 
291 ;  Chase  v.  Ross,  36  Wis.  267;  Sumner  v.  Parker,  7  Mass.  79;  Withers 
V.  Patterson,  27  Tex.  501,  86  Am.  Dec.  643;  E.c  parte  Barker,  2  Leigh, 
719;  Miller  v.  Jones,  26  Ala.  247;  Allen  v.  Kellam,  69  Ala.  442;  Dooley 
V.  Bell,  87  Ga.  74;  Bell  v.  Love,  72  Ga.  125;  Callahan  v.  Fluker,  49  La. 
Ann.  237;  Haug  v.  Primeau,  98  Mich.  91 ;  Templeton  v.  Fulls  L.  &  C. 
Co.,  77  Tex.  55.    Sec  ante,  sec.  2. 

51 


§     10  VOID    JUDICIAL    SALES. 

bolioYc,  however,  that  the  true  subject  of  inquiry  must  be, 
not  whether  the  appointment  of  the  executor  or  adminis- 
trator was  erroneous  orirreguhir  or  his  (lualitication  as  such 
omitted  or  inadequate,  but  Avhether,  when  the  petition  for 
the  order  of  sale  was  granted,  the  court  had  jurisdiction 
over  the  estate.^  If  there  never  was  any  attempted  grant  of 
administration  or  of  guardianship,  or  though  attempted, 
it  was  void,  the  court  may  still  properly  be  regarded  as  not 
having  acquired  jurisdiction  of  the  estate  of  the  decedent  or 
minor,  and  if  so,  jurisdiction  is  not  vested  in  it  from  the 
presentation  of  the  petition  for  leave  to  sell  property.^  If, 
on  the  other  hand,  there  has  been  a  valid  grant  of  adminis- 
tration or  guardianship,  the  court  has  jurisdiction  to  con- 
sider and  to  dispose  of  every  subsequent  application  made 
to  it  for  the  sale  of  the  property,  whether  by  a  person 
whom  it  ought  to  hear  upon  the  subject  or  not.  Hence, 
where  an  order  of  sale  has  been  granted,  it  cannot  be  held 
void  because  the  petition  should  have  been  by  creditors  or 
legatees  instead  of  by  an  administrator  or  executor  in  their 
behalf  ,'^  or  because  a  guardian  who  petitioned  on  behalf  of 
a  minor  was  executor  of  the  estate,  and  therefore  should 
not  have  been  appointed  guardian.*  On  the  same  principle, 
where  there  has  been  a  valid  grant  of  letters  of  administra- 
tion and  a  subsequent  removal  and  the  appointment  of  an 
administrator  de  bonis  non,  who  procured  an  order  of  sale, 
it  cannot  be  collaterally  attacked  on  the  ground  that  such 
removal  was  void  or  unauthorized.  If  the  petition  avers 
the  appointment  of  an  administrator  de  bonis  non,  the 
granting  of  the  order  of  sale  is  a  judicial  determination 
that  he  is  the  personal  representative,  "for  without  such 
determination  the  order  could  not  have  been  granted,"  and 


1  Comstock  V.  Crawford,  3  Wall.  403;  Simmons  v.  Saul,  138  U.  S.  439. 

2  Myers  v.  McGavoek,  39  Neb.  843,  42  Am.  St.  Rep.  627. 

3  Simpson  v.  Bailey,  80  Md.  421;  Appeal  of  Littleton,  93  Pa.  St.  177. 
*  Kander  v.  Mugele,  153  Pa.  493. 

52 


VOID    JUDICIAL    SALES.  §     11 

neither  it  nor  the  sale  can   be  impeached  on   a   collateral 
attack. 1 

The  authority  of  a  guardian  or  administrator  is  confined 
to  the  State  by  whose  courts  he  was  appointed.  Hence,  he 
cannot  be  authorized  to  sell  property  situate  in  another 
State. ■-*  A  sale  made  by  a  foreign  guardian,  or  by  a  parent 
in  his  capacity  of  natural  guardian,-^  or  by  one  who  falsely 
represents  himself  to  be  a  guardian, "^  or  by  one  who  has 
ceased  to  be  a  guardian,-^  is  void.  If  the  statute  requires 
the  application  for  a  guardian's  sale  to  be  filed  in  the  county 
in  which  the  Avard  resides,  or  in  case  he  resides  out  of  the 
State,  then  in  the  county  in  which  the  land  sought  to  be 
sold  lies,  the  filing  in  the  proper  county  has  been  held  to 
be  jurisdictional,  and,  therefore,  a  prerequisite  to  a  valid 
order  of  sale/' 

§  11.  There  must  be  a  Siifflcient  Petition  for  License 
to  Sell — What  Petitions  are  InsufHcient. — As  in  an  action 
at  law,  the  declaration  should  aver  the  facts  entitling  the 
plaintiff  to  judgment,  so  in  a  petition  in  probate,  for 
authority  to  sell  property,  the  matters  necessary  to  justify 
the  sale  must  be  set  forth.  In  truth,  this  necessity  seems 
to  be  more  imperative  in  the  case  of  the  petition  than  in 
that  of  the  declaration.  The  judgment  of  a  court  of  law 
can  rarely,  if  ever,  be  treated  as  void,  because  pronounced 
upon  an  insuflicient  complaint.  An  order  in  probate  must 
be  supported  by  a  petition  sufficient  in  substance  to  show  a 
legal  cause  for  the  order.  A  license  to  sell,  granted  without 
any  petition  therefor,  is  void.'^     But  a  mere  petition  is  not 

'  Clancy  v.  Stephens,  92  Ala.  577;  Larford  v.  Dunklin,  71  Ala.  594. 

2  McAnulty  v.  McClay.  10  Neb.  418. 

"McNeil  V.  Congregational  Society,  60  Cal.  105;  Myers  v.  McGavock, 
39  Neb.  843,  42  Am.  St.  Rep.  027. 

<  Grier's  Appeal,  101  Pa.  St.  412. 

»  Phelps  V.  Buck,  40  Ark.  219. 

«  Spellman  v.  Dow,  79  111.  OG. 

^Teverbaugh  v.  Hawkins,  82  Mo.  180;  Alabama  Conference  v.  Price 
42   Ala.   39;  Wyatt's  Admr.   v.  Karabo,   29  Ala.  510;  08  Am.  Dec.  89; 

53 


§     11  VOID    JUDICIAL    SALES. 

cnouoh.  The  statutes;  of  each  State  designate  the  contin- 
f^encios  in  which  the  real  estate  of  a  deceased  or  incompe- 
tent person  may  be  ordered  to  be  sokl.  The  probate  courts 
have  no  power  to  license  a  sale  in  the  absence  of  these  con- 
tingencies. The  statute  prescribes  the  limit  of  the  judicial 
authority.  Action  beyond  this  limit  is  not  irregular  or 
erroneous  merely — it  is  non-judicial.  If  the  causes  of  sale 
designated  by  statute  are  too  few,  relief  must  be  sought 
fronj  the  legislature.  An  order  of  sale  made  to  accomplish 
a  ])uiiiose  not  sanctioned  by  statute,  or  based  upon  a  neces- 
sity not  recognized  by  statute,  is,  in  legal  effect,  coram  non 
judice.  It  cannot  justify  a  sale  made  in  pursuance  of  its 
directions.^ 

The  theory  of  the  law  is,  that  the  probate  courts  have 
no  general  authority  to  dispose  of  an  estate  in  process  of 
administration ;  that  their  power  of  disposition  is  special 
and  limited,  and  that  he  who  relies  upon  the  power  must 
disclose  a  state  of  facts  sufficient  to  call  it  into  being.  It  is 
also  essential  that  the  petition  state  a  sufficient  cause  of 
action.  The  order  of  the  court  is  based  upon  the  petition, 
and  cannot  draw  its  support  from  beyond  the  petition,  un- 
less the  statute  otherwise  provide.  If  the  petition  states 
no  cause  of  sale,  it  cannot  be  competent  to  prove,  in 
support  of  the  sale,  that  the  court  in  fact  received  evi- 
dence of  facts  not  relied  upon  by  the  petition,  and  that  its 
action  was,  in  fact,  induced  by  proof  of  the  causes   of  sale 

Ethell  V.  Nichols,  1  Idaho  (N.  S.),741;  Finch  v.  Edmondson,  9  Tex. 
504.  But  in  Withers  v.  Patterson,  27  Tex.  499,  86  Am.  Dec.  643,  and  in 
Alexander  v.  Maverick,  IS  Tex.  179,  67  Am.  Dec.  69.5,  it  was  intimated 
that  tbe  absence  of  a  petition  might  not  be  fatal,  and  so  decided  in 
Rnnweli  v.  St.  Alban'sBank,  28 Minn.  202. 

'  Bompart  v.  Lucas.  21  Mo.  598;  Farrar  v.  Dean,  24  Mo.  16;  Newcomb 
V.  Smith,  5  Ohio,  448;  Withers  v.  Patterson,  27  Tex.  499;  Strouse  v. 
Drennan,  41  Mo.  298;  Beal  v.  Harmon,  38  Mo.  435;  Ikelheimer  v.  Chap- 
man. 32  Ala.  676;  Sanford  v.  Granger,  12  Barb.  392;  Woodruff  v.  Cook, 
2Edw.  Ch.259;  Cornwall's  Estate,  1  Tucker,  250;  Hall  v.  Chapman, 
35  Ala.  553. 

54 


AOID    JUDICIAL    SALES.  §11 

omitted  from  the  petition,  but  specilied  in  the  statute. ^ 
Some  of  the  statutes  designate,  in  general  terms,  the  pur- 
poses for  Avhich  a  sale  may  be  licensed,  and  declare  that  the 
application  for  such  license  must  be  in  writing  and  must 
show  the  necessity  for  the  sale.  Other  statutes  enumerate 
with  considerable  particularity  the  matters  to  be  inserted  in 
the  petition.  Even  where  the  statute  does  not  contain  any 
special  enumeration  of  the  matters  to  be  stated,  it  is  evi- 
dent that  a  petition  may  be  fatally  defective:  1st,  when 
it  seeks  an  improper  object,  as,  for  instance,  the  sale  of 
property  for  a  supposed  benefit  to  the  estate,  when  the 
statute  authorizes  a  sale  for  no  such  purpose.;  and,  2d, 
when  a  proper  object  is  sought,  but  the  sale  is  not  shown 
to  be  necessary  to  obtain  it,  as  where  a  sale  is  asked  to  pay 
debts,  but  no  debts  are  shown  to  exist,  or  the  deficiency  of 
personal  assets  with  which  to  pay  the  debts  is  not  affirmed. 
"•A  long  series  of  decisioos  in  this  State — uniformly  hold- 
ing to  the  same  rule — has  determined  that  the  application 
of  an  executor  or  administrator  for  the  sale  of  lands  belong- 
ing to  the  estate  is  a  special  and  independent  proceeding; 
that  the  jurisdiction  of  the  probate  court  depends  absolutely 
on  the  suflSciency  of  the  petition — in  other  words,  on  its 
substantial  compliance  with  the  requirements  of  the  probate 
act.  Though  the  proceeding  for  the  sale  occurs  in  the 
general  course  of  administration,  it  is  a  distinct  proceeding 
in  the  nature  of  an  action,  in  which  the  petition  is  the  com- 
mencement and  the  order  of  sale  is  the  judgment.  The 
necessity  for  a  sale  is  not  a  matter  for  the  administrator  or 
executor  to  determine,  but  is  a  conclusion  which  the  court 
must  draw  from  the  facts  stated,  and  the  petition  must 
furnish  materials  for  the  judgment."  ^      Upon  the  theory 

1  Pryor  v.  Downey,  50  Cal.  388,  19  Am.  Rep.  656. 

2  J'ryor  v.  Downey,  50  Cal.  388, 19  Am.  Rep.  656;  Wilson  v.  Armstrong, 
42  Ala.  168,  94  Am.  Dec.  635;  Spencer  v.  Jennings,  114  Pa.  St.  618;  Ser- 
mon v.  Black,  79  Ala.  .507;  Wilson  V.  Holt,  83  Ala.  528;  Haynes  v. 
Meeks,  20  Cal.  288;  Gregory  v.  McPherson,  13  Cal.  562;   Hall  v.  Cbap- 

55 


§    11  VOID    JUDICIAL    SALES. 

that  it  is  indispensjible  that  the  petition  show  a  necessity 
for  the  action  of  the  court,  it  has  been  held  that  an  appli- 
cation by  an  executor  for  an  order  of  sale  is  fatally  defect- 
ive, even  when  collaterally  assailed,  if  it  does  not  negative 
the  existence  of  a  power  of  sale  in  the  will,  and  thereby 
establish  that  he  cannot  proceed  unless  first  authorized  by 
the  order  of  the  court. ^ 

The  policy  of  the  law  has  always  been  in  favor  of  .pre- 
serving- the  real  estate  of  heirs.  Hence,  if  any  necessity 
arises  for  the  raising  of  money,  resort  must  first  be  had  to 
the  personal  estate  of  the  heir  or  ward.  It  is  not  probable 
that  a  petition  for  the  sale  of  real  estate  would  give  juris- 
diction to  any  probate  court  in  the  Union,  if  it  failed  to 
show  that  the  personal  estate  was  either  exhausted  or  was 
insufficient  to  produce  the  requisite  funds. ^  By  a  statute 
of  New  York,  an  administrator,  suspecting  the  personal 
estate  of  the  deceased  to  be  insufficient  to  pay  the  debts, 
was  required  to  make  an  account  of  such  personal  estate 
and  deliver  it  to  the  judge  of  the  court  of  probate,  or  the 
surrogate  of  the  county,  and  request  his  aid  in  the  premises. 
Thereupon,  an  order  issued  to  the  person  interested  to 
show  cause  why  the  real  estate  should  not  be  sold.  The 
account,  being  essential  to  showing  the  deficiency  of  per- 

raan,  35  Ala.  553;  Jackson  v.  Robinson,  4  Wend.  436;  Fitch  v.  Miller,  20 
Cal.  352.  But  by  section  1518,  Code  Civil  Procedure  of  California,  '-a 
failure  to  set  forth  the  fact  showing  the  sale  to  be  necessary  will  not  in- 
validate the  subsequent  proceedings,  if  the  defect  be  supplied  by  the 
proofs  at  the  hearing,  and  the  general  facts  showing  the  necessity  be 
stated  in  the  order  directing  the  sale."    See  also  sec.  1537,  Cal.  C.  C.  P. 

»  Wilson  V.  Holt,  83  Ala.  528,  3  Am.  St.  Rep.  726.  In  truth,  the  decis- 
ions in  this  State  substantially  affirm  that  whenever  the  statements  in  a 
petition  for  the  sale  of  real  property  are  so  defective  that  objections 
made  thereto,  before  the  granting  of  the  order,  should  have  been  sus- 
tained, the  court  is  without  jurisdiction,  and  hence,  though  no  objec- 
tions are  interposed,  the  order  and  subsequent  proceedings  resting 
thereon  must  be  adjudged  void.    Sermon  v.  Black,  79  Ala.  507. 

2  Gregory  v.  Tabor,  19  Cal.  397;  Stuart  v.  Allen,  16  Cal.  473,  76  Am. 
Dec.  551 ;  Wattles  v.  Hyde,  9  Conn.  10. 

56 


VOID    JUDICIAL    SALES.  §    11 

sonal  assets,  was  treated  as  jurisdictional.      A  sale,  in  its 
absence,  was  always  held  void.' 

The  statutes  generally  require  petitions  for  orders  to  sell 
real  estate  to  be  verified.  The  courts,  nevertheless,  have 
declared  that  verification  was  not  a  matter  jurisdictional 
in  its  nature;  and,  therefore,  that  its  omission  was  not  a 
fatal  irregularity. 2  In  most  States  the  proceedings  for  the 
sale  of  real  estate  are  adversary  proceedings.  In  such  pro- 
ceedings parties  defendant,  as  well  as  plaintiff,  are  essen- 
tial. As  the  heirs  occupy  the  position  of  defending  par- 
ties, the  petition  should  show  who  they  are  in  order  that 
they  may  be  brought  into  court. -^  The  failure  to  name  them 
has  been  held  fatal. ^  If  the  petition  makes  no  attempt  to 
name  the  heirs,  or  it  otherwise  appears  therefrom  that  tlie 
names  of  some  of  them  are  omitted,  the  case  falls  within 
the  rule.  It  may  be,  however,  that  the  petition  is  perfect 
on  its  face  in  that  it  purports  to  name  all  of  the  heirs,  or  to 
name  them  according  to  the  best  of  the  petitioner's  knowl- 
edge and  belief.  A  petition  of  this  character  is  sufficient 
upon  its  face,  and  an  order  of  sale  based  thereon  cannot  be 
collateralh'  avoided  on  the  ground  that  the  name  of  an  heir 
was  incorrectly  stated  or  entirely  omitted.*'^ 

1  Bloom  V.  Burdick.  1  Hill,  130,  37  Ain.  Dec.  21)9;  Corwin  v.  Merritt, 
3  Barb.  341 ;  Ford  v.  Walswortb,  15  Wend.  4.50;  Jackscn  v.  Crawfords, 
12  Wend.  .533;  Atkins  v.  Kinnan,  20  Wend.  241,  32  Am.  Dec.  534;  Wood 
V.  McChesney,  40  Barb.  417.     See  Forbes  v.  Halsey,  2G  X.  Y.  53. 

2  Trumble  v.  Williams,  18  Xeb.  144;  Hamill  v.  Donnelly,  75  Iowa,  93; 
Myers  v.  McGavock,  39  Neb.  843,  42  Am.  St.  Rep.  G27.  Contra,  appar- 
ently, Willis  V.  Pauly,  116  Cal.  .575. 

^Morris  V.  Hogle,  37  111.  150,  87  Am.  Dec.  2J3;  Hoard  v.  Hoard,  14 
Ala.  590;  Tiirney  v.  Young,  22  111.  253. 

<Guy  V.  Pierson,  21  Ind.  18;  McCorkle  v.  Rhea,  75  Ala.  213;  Uord 
V.  Herd's  Admr.,  41  Ala.  590;  In  re  .John's  Estate,  18  N.  Y. 
«upp.  172,  21  Civ.  Pro.  Rep.  326;  Jenking  v.  Young,  35  Hun,  569. 
Contro,  that  the  omission  of  the  names  of  the  heirs  is  an  irregularity 
merely.  Gibson  v.  Roll,  27  111.  92,  83  Am.  Dec.  181 ;  Stow  v,  Kimball, 
28  111.  106;    Morris  v.  Hogle,  37  111.  150,  87  Am.  Dec.  243. 

^Townsend  v.  Steele.  85  Ala.  .580;  McCormuck  v.  Kimmel,4  111.  App. 
121. 

67 


§11  VOID    JUDICIAL    SALES. 

The  petitioner  cannot,  at  the  hearing,  abandon  the 
grounds  stated  in  his  petition  and  obtain  a  license  to  sell  on 
some  other  ground.  A  court  having  jurisdiction  of  a  peti- 
tion for  a  sale  to  pay  debts,  cannot  thereon  grant  a  valid 
license  to  sell  to  promote  the  interest  of  the  heirs. ^ 

The  property  sought  to  be  sold  must  generally  be 
described  in  the  petition.  No  jurisdiction  is  obtained  over 
that  which  is  not  described.  A  license  to  sell  the  whole  of 
the  real  estate  of  a  decedent,  based  on  a  petition  to  sell  a 
part,  is  void.'^  A  description  contained  in  a  petition  for  a 
sale  of  real  property,  may  be  assailed  on  the  ground  that 
the  description  contained  therein  is  equally  applicable  to 
two  or  more  parcels  of  land,  or  is  not  suthcient  to  desig- 
nate any  particular  parcel,  or,  though  entirely  sufficient 
upon  its  face,  applies  only  to  a  parcel  in  Avhichthe  decedent 
had  no  interest.  In  the  latter  case  in  the  subsequent  pro- 
ceedings the  property  intended  may  have  been  correctly 
described,  and  evidence  may  be  oifered  to  show  that  the 
description  inserted  in  the  petition  was  in  fact  intended  to 
apply  to  a  parcel  of  property  owned  by  the  decedent  and 
subsequently  sold  by  his  executor  or  administrator.  All 
this  must  be  unavailing.  A  description  of  one  parcel  can- 
not be  converted  into  a  description  of  another,  nor  can  the 
sale  of  the  latter  be  supported  by  proof  of  the  mistake. "^ 

A  description  is  not  inadequate  to  support  the  order  of 
sale,  if  it  is  such  as  would  be  sufficient  in  a  conveyance,  or 
as  is  rendered  intelligible  by  the  aid  of  facts  of  wdiich  the 
court    has   judicial    knowledge.*     Where    a  petition  for  a 


'  Williams  v.  Childress,  25  Miss.  78. 

-  Verry  v.  McCIellan,  6  Gray,  535,  66  Am.  Dec.  423;  Tenny  v.  Poor, 
14  Gray,  502,  77  Am.  Dec.  340. 

3  Hanson  v.  Ingwaldson,  77  Minn.  533,  77  Am.  St.  Rep.  692;  Kurtz  v. 
St.  Paul  &D.R.  Co.,  65  Minn.  60;  Melton  v.  Fitch,  125  Mo.  281;  Hazel- 
ton  V.  Borgardus,  8  Wash.  102. 

4  Grant  v.  Hill  (Tex.  Civ.  App.),  44  S.  W.  Rep.  1027;  Smitha  v. 
Flournoy,  47  Ala.  345.  '-Southeast  quarter  of  sec.  19,  T.  12:9,"  is  fatally 

58 


VOID    JUDICIAL    SALES.  §    11 

license  to  sell  lauds  of  minors  stated  that  it  was  all  the  real 
estate  belonging  to  them  in  a  certain  addition  to  the  citv  of 
Omaha,  but  by  mistake  described  it  as  in  block  AV  of  that 
addition,  whereas  it  contained  no  block  W,  and  the  prop- 
erty was  in  fact  situated  in  block  U,  the  petition  was  held 
to  be  sufficient  upon  the  ground  that  it  contained  two  incon- 
sistent descriptions  of  the  property,  "the  one  general  and 
the  other  specitie,  the  former  true  and  the  latter  in  part 
false  and  incapable  of  being  applied  to  any  tract  of  land." 
and  that  the  false  description  should  be  rejected  and  the 
general  description  of  the  property  held  sufficient  to  sus- 
tain the  subsequent  sale.  The  court  said:  "The  office  of 
a  description  in  a  deed  is  not  to  identify  the  lands,  but  to 
provide  means  of  identification ;  and  it  is  sufficient  when 
this  is  done.  It  must  be  conceded,  we  think, — for  such  is 
undoubtedh^  the  law, — that  the  description  of  the  property 
in  the  proceedings  by  a  guardian  for  the  sale  of  the  lands 
of  the  ward  need  not  necessarily  be  more  specific,  definite, 
and  certain  than  is  demanded  in  deeds  or  other  conveyances 
of  real  property.  A  conveyance  is  not  void  for  want  of 
description  where  an  uncertainty  as  to  the  identity  of  the 
land  can  be  explained  by  extrinsic  proofs.  A  deed  simply 
describing  in  the  granting  clause  all  the  grantor's  lands  in 
the  State,  or  within  a  certain  county  or  city,  is  not  void  for 
indefiniteness,  but  is  a  sufficien.t  description  aliunde  of  what 
lands  the  grantcr  at  the  time  owned. "^  A  petition  for  the 
sale  of  the  land  of  minors  described  it  as  a  one-twelfth 
interest  of  each  of  the  minors  "in  the  southeast  quarter  of 
section  12,  range  17,  township  12."  In  an  action  of  eject- 
ment it  was  subsequently  objected  that  this  description  was 
not  sufficient  to  sustain  the  sale,  on  the  ground  that  it  did 
not  state  in  what  county  or  State  the  land  was  situate,  nor 
whether  in  range  east  or  west,  or  township  north  or  south. 

defective  as  a  description.    Weed  v.  Edmonds,  4  Ind.  468.  "yection  12' 
T.  17,  R.  21,"  was  held  sufficient  in  Wright  v.  Ware,  50  Ala.  549. 
'  Ilubermann  v.  Evans,  46  Neb.  784. 

59 


§    11  VOID    JUDICIAL    SALES. 

The  court  sustained  the  description  on  the  ground  that  the 
property  was  situate  in  Shawnee  county,  that  all  the  parties 
interested  in  the  land  resided,  and  the  proceedings  were 
had,  in  that  county,  and  that  no  person  could  have  been 
misled  as  to  where  the  land  was  actually  situated.^  There 
can  be  no  doubt  of  the  correctness  of  the  decision,  provided 
there  was  no  other  tract  of  land  in  Shawnee  county  to  Avhich 
the  descriptive  words  were  as  applicable  as  to  the  land 
intended  to  be  sold  and  actually  sold.  The  petition  need 
not  state,  in  Missouri,  that  the  property  belonged  to  the 
decedent.-  In  Kansas  it  does  not  appear  to  be  essential  to 
})articularly  describe  the  real  property  of  a  decedent  in  a 
petition  for  its  sale.  It  is  sufficient  in  that  State,  at  least, 
when  the  question  arises  collaterally,  that  the  petition  aver 
that  it  is  necessary  to  sell  the  real  estate  and  name  the 
county  in  which  it  is  situate.^  This  decision  is  not,  in  our 
judgment,  sustained  by  the  cases  upon  which  the  court  ap- 
pears to  rely,  and  we  apprehend  it  will  find  little  favor  in 
any  court  which  regards  itself  as  bound  by  the  general  rule 
that  a  sale  of  real  estate  must  be  supported  by  a  sufficient 
petition.  If  there  is  anything  essential  in  a  petition  or 
complaint,  we  think  it  must  be  a  designation  of  its  subject- 
matter,  in  language  sufficiently  exact  to  enable  a  competent 
person  to  understand  its  location  and  extent.  If  real  prop- 
erty is  described  as  "part  of  claim  No.  2087,  survey  No. 
440,  in  township  6  south,  range  8  west,  and  part  of  claim  No. 
559,  survey  No.  61)6,  in  township  6  south,  of  range  7  Avest, 
saving  and  excepting  73  76-100  acres  of  claim  No.  2087,  sur- 
vey No.  440,  sold  by  Catherine  Fisher  by  virtue  of  an  order 
of  the  probate  court,  made  at  the  January  Term,  1860,"^ 
or  as  "an  estate  in  possession  in  about  three-quarters  of  an 
acre  of  land,  being  the  same,  more  or  less,  situate  south  of 

1  Howbert  v.  Heyle,  47  Kan.  58. 

2  Trent  v.  Trent,  24  Mo.  307. 

3  Bryan  v.  Bander,  23  Kan.  95. 

*  Borders  v.  Hodges,  154  111.  498. 

60 


VOID    JUDICIAL    SALES.  §     11 

North  Main  street,  in  the  town  of  Cohassett,  in  the  county 
of  Norfolk,"^  or  as  "-the  undivided  one-half  of  a  league  of 
land  on  Clear  Lake,"  or  as  "the  undivided  one-half  part  of 
a  farm  and  vineyard  at  Sonoma,  containing  eight  hundred 
and  thirty-three  acres,  more  or  less,"  or  as  "eighty  acres 
of  land  lying  north  of  Courtland,  and  east  of  the  Lamb's 
Ferry  Road,"  it  is  clear  that  no  person,  from  these  descrip- 
tions alone  can  locate  the  tracts  thus  imperfectly  desig- 
nated, and  that  sales  based  on  such  descriptions  must  be 
void. 2 

Some  of  the  more  recent  cases  exhibit  a  disinclination  to 
enforce  the  general  rule  exacting  a  sufficient  petition  as  a 
prerequisite  to  a  valid  order  of  sale.  The  petitions  sus- 
tained in  such  cases  will  generally  be  found  either  to  be 
deficient  in  formal  matters,  while  they  set  forth  informally 
matters  amply  adequate  to  sustain  a  sale,  or  else  to  be  aided 
by  some  statute  which  undertakes  to  limit  the  cases  in 
which  sales  of  the  class  in  question  may  be  adjudged  void.-^ 
But  it  is  still  requisite  in  most,  if  not  in  all  of  the  States, 
that  the  action  of  the  court  be  based  on  a  sufficient  peti- 
tion ;  and  by  a  sufficient  petition  we  mean  one  which  at  least 
shows  the  property  intended  to  be  sold,  the  existence  of 
facts  warranting  such  sale  under  the  statutes  of  the  State, 
and  generally  such  other  facts  as  the  statute  directs  to  be 
inserted  in  such  petition,  to  enable  the  court  the  better  to 
judge  of  the  necessity  or  advisability  of  the  sale.^  There 
are  other  matters  with  respect  to  which  the  provisions  of 
the  statute  have  been  regarded  as  directory  merely.  Thus, 
though  the  statute  directs  that  the  petition  shall  be  verified, 

'  Pratt  v.  Bates,  161  Mass.  315. 

2  Wilson  V.  Uastings,  GO  Cal.  243;  Gilchrist  v.  Shackelford,  72  Ala.  7. 

^  McKeever  v.  IJall,  71  Ind.  398;  Worthington  v.  Dunkin,  41  Ind.  515; 
Moffitt  V.  Moffitt,  m  III.  G41  ;  Stanley  v.  Noble,  59  Iowa,  G«(J. 

^  Boland's  Estate,  55  Cal.  310;  Wilson  v.  Hastings,  (16  Cal.  243;  Rose's 
Estate,  63  Cal.  340;  Wright  v.  Edwards,  10  Or.  298;  Hayes  v.  Mc- 
Nealy,  16  Fla.  409;  Ryder  v.  Flanders,  39  Mich.  336;  Young  v.  Young, 
12  Lea,  335;  Arnett  v.  Bailey,  60  Ala.  435. 

61 


§     12  VOID    JUDICIAL    SALES. 

the  absence  of  such  vcrificiitiou  has  never  been  held  fatal. 
The  jurisdiction  of  the  court  was  thought  to  l)e  called  into 
action  by  a  petition  stating  the  requisite  facts,  and  the 
absence  of  verification  was  adjudged  to  be  a  mere  irregu- 
larity.^ An  administrator  or  executor,  in  i)etitioning  for  a 
sale,  need  not  aver  the  death  of  the  testator  or  intestate, 
nor  the  time  or  mode  of  the  petitioner's  appointment;  but 
may  simply,  upon  this  subject,  state  that  he  is  the  executor 
or  administrator,  as  the  case  may  be,  of  the  decedent.^ 

§  12.  Statutes  Designating  what  Petition  for  Order  of 
Sale  must  Contain. — Where  a  statute  enumerates  the  mat- 
ter to  be  contained  in  the  petition  for  the  sale  of  real  estate, 
its  object  is  to  compel  petitioners  to  disclose  the  supposed 
necessity  of  the  sale,  and  also  to  furnish  information  which 
will  aid  the  court  in  determining  upon  the  best  course  of 
action,  in  case  it  finds  a  sale  to  be  necessary.  The  statute 
of  California  exacts  more  than  any  other  which  has  come 
under  our  observation.''  It  requires  a  verified  petition  set- 
ting forth :  1 ,  the  amount  of  personal  property  that  has 
come  into  the  hands  of  the  administrator,  and  how  much 
remains  undisposed  of;  2,  the  debts  of  the  decedent;  3, 
the  amount  due  or  to  become  due  on  the  family  allowance ; 
4,  the  debts,  expenses  and  charges  of  administration  ac- 
crued and  to  accrue;  5,  a  general  description  of  all  the 
real  property  of  which  the  decedent  died  seized,  or  in  which 
he  had  any  interest,  or  in  which  the  estate  had  acquired 
any  interest,  and  the  condition  and  value  thereof,  and 
whether  the  same  be  community  or  separate  property ;  6, 
the  names  of  the  heirs,  legatees  and  devisees  of  the  de- 

1  Ellsworth  V.  Hall,  48  Mich.  407;  Coon  v.  Fry,  6  Mich.  506;  Tramble 
V.  Williams,  18  Neb.  144;  Johnson  v.  Jones,  2  Neb.  12(j;  Williamson  v. 
Warren,  55  Miss.  199. 

2  Moffitl  V.  Moffitt,  69  111.  641 ;  Stow  v.  Kimball,  28  111.  93. 

3  C.  C.  P.  of  Cal.,  sec.  1537.  See  also  Starr  &  Curtis'  Stat.  111.,  pp. 
325,  327,  sees.  99,  100;  General  Stat,  of  Kan.,  p.  537,  sees.  117  to  120; 
Howell's  Ann.  St.  Mich.,  sees.  6027,  6086;  Stat,  of  Minn.  (Ed.  1894),  sec. 
4575;  Rev.  Stat.  Mo.  (Ed.  1889),  p.  149,  sees.  145,  146. 

62 


VOID    JUDICIAL    SALES.  §     12 

ceased,  so  far  as  knovrii  to  the  petitioner.  If  any  of  the 
matters  here  enumerated  cannot  be  ascertained,  it  must  be 
so  stated  in  the  petition.^  Whenever  the  question  has 
arisen,  the  supreme  court  of  this  State  has  decided  that  the 
power  of  the  probate  court  to  order  a  sale  depended  upon  a 
petition  in  substantial  compliance  with  the  statute.'-  In 
Missouri,  if  any  person  dies,  and  his  personal  estate  is  in- 
sufficient to  pay  his  debts  and  legacies,  his  executor  or  ad- 
ministrator must  present  a  petition  stating  the  facts. -^  The 
petition  must  be  accompanied  by  a  true  account  of  his  ad- 
ministration;  a  list  of  debts  due  to  and  by  the  decedent, 
and  remaining  unpaid,  and  an  inventory  of  the  real  and 
personal  property,  with  its  appraised  value,  and  all  other 
assets.*  It  seems  now  to  be  settled  in  that  State,  that  the 
jurisdiction  of  the  court  attaches  on  the  tiling  of  the  peti- 
tion, and  that  the  omission  of  the  accounts  and  lists,  re- 
quired by  statute  to  accompany  it,  is  not  fatal. ^  In  "Wis- 
consin and  several  other  States,  the  statute  provides  that 
sales  shall  not' be  avoided  on  account  of  any  irregularity,  if 
it  appears:  1,  that  the  executor,  administrator  or  guardian 
was  licensed  to  make  the  sale  by  the  probate  court  having 
jurisdiction;  2,  that  he  gave  a  bond  on  the  granting  of  the 
license;  3,  that  he  took  the  oath  as  prescribed  by  statute 
before  making  the  sale;  4,  that  he  gave  the  notice  of  the 
sale;   and,  o,  that  the  premise.s  were  sold  in  good  faith  and 

JC.  C.  P.  of  Cal.,  sec.  1537. 

2  Gregory  v.  McPherson,  13  Cal.  562;  Stuart  v.  Allen,  16  Cal.  473,  76 
Am.  Dec.  551;  Townsend  v.  Gorden,  19  Cal.  188;  Gregory  v.  Taber,  19 
Cal.  397,  79  Am.  Dec.  219;  Uaynes  v.  Meeks,  20  Cal.  288;  Fitch  v.  Miller, 
20  Cal.  3.52.  Also,  to  same  effect.  Ackley  v.  Dygert,  33  Barb.  190;  Bree 
V.  Bree,  51  111.  367. 

■5 1  Rev.  Stat,  of  Mo.  (Ed.  1889),  p.  149,  sec.  145. 

*  1  Rev.  Stat,  of  Mo.  (Ed.  1889),  p.  1.50,  sec.  146. 

^  Overton  v.  Johnson,  17  Mo.  442;  Mount  v.  Valley,  19  Mo.  621 ;  Gray- 
son v.  Weddle,  03  Mo.  523;  I'attee  v.  Thomas,  58  Mo.  163.  These  cases, 
we  think,  are,  in  principle,  directly  opposed  to  the  New  York  cases — 
Bloom  v.  Burdick,  1  Uill,  130,  37  Am.  Dec.  299;  Ford  v.  AValsworth,  15 
Wend.  450;  Jackson  v.  Crawfords,  12  Wend.  533. 

63 


§    13  VOID    JUDICIAL    SALES. 

the  siile  confirmed.     Under  this  statute  sales  based  on  de- 
fective petitions  are  hekl  valid. ^ 

§  13.  Petitions  for  Sale  Liberally  Construed — When 
Otiier  Papers  may  be  Referred  to.— The  rule  of  law  that 
declares  void  probate  sales  based  on  insufficient  petitions,  is 
very  harsh  in  its  operation.  To  avoid  the  necessity  of  ap- 
plying the  rule,  the  courts  will  construe  petitions  as  lib- 
erally as  possible.  They  will  not  require  the  use  of  the 
exact  language  of  the  statute ;  they  will  forgive  all  errors 
of  form ;  they  will  regard  it  as  sufficient  if  the  matters 
stated  are  substantially  those  required  to  be  stated,  and,  in 
interpreting  the  language  used,  they  will  seek  to  find  in  it 
something  to  support,  rather  than  to  destroy  the  title  based 
on  the  probate  proceedings. ^  The  question  presented  when 
a  sale  is  collaterally  attacked  is  necessarily  quite  different 
from  that  involved  in  a  special  demurrer  or  other  objection 
to  a  petition  for  an  order  of  sale,^'  for  the  court  to  which 
the  petition  is  presented  necessarily  has  authority  to  deter- 
mine its  sufficiency,  and  if  there  is  enough  in  the  petition 
to  invoke  the  action  of  the  court,  any  resulting  error  is  an 
appropriate  subject  for  consideration  upon  appeal,  but  not 
a  ground  for  absolutely  disregarding  the  order  or  other 
judgment  of  the  court.  Whether  a  statute  expressly  so 
directs  or  not,  it  may  be  assumed  that  every  petition  must 

1  Reynolds  v.  Schmidt,  20  Wis.  374;  Mobr  v.  Tulip,  40  Wis.  66;  Mohr 
V.  Manniere,  101  U.  S.  41,  9  Ch.  L.  N.  270;  1  Stat.  Minn.  (Ed.  1894)  sec. 
4612;  Coon  v.  Fry,  6  Mich.  506;  Woods  v.  Monroe,  17  Mich.  238;  Mc- 
Keever  v.  Ball,  71  Ind.  406;  Runwell  v.  St.  Alban's  Bank,  28  Minn.  202. 

2  Morrow  v.  Weed,  4  Iowa,  77,  66  Am.  Dec.  122;  King  v.  Kent's  Heirs, 
29  Ala.  542 ;  Moffitt  v.  Moffitt,  69  111.  641 ;  De  Bardelaben  v.  Stoundenmire, 
48  Ala.  643;  Fitch  v.  Miller,  20  Cal.  382;  Haynes  v.  Meeks,  10  Cal.  315; 
Wright  V.  Ware,  50  Ala.  549;  Maurr  v.  Parrish,  26  Ohio  St.  636;  Wing 
V.  Dodge,  80  111.  564;  Bowen  v.  Bond,  80  111.  351;  Burns  v.  Adams,  98 
Cal.  667:  Richardson  v.  Butler,  82  Cal.  172,  16  Am.  St.  Rep.  101;  Scarf 
V.  Aldrich,  97  Cal.  360,  33  Am.  St.  Rep.  190;  Lyne  v.  Sanford,  82  Tex. 
58,  27  Am.  St.  Rep.  852. 

3  Silverman  v.  Gundelfinger,  82  Cal.  548;  Estate  of  Devincenzi,  119 
Cal.  498;  Bateman  v.  Reitler,  19  Colo.  547;  Ackerson  v.  Orchard,  7 
Wash.  377. 

64 


VOID    JUDICIAL    SALES.  §    13 

show  some  necessity  for  the  action  sought,  and  if  the  peti- 
tion is  for  the  sale  of  real  property,  it  is  generally  necessary 
to  disclose  the  necessity  for  some  sale  and  the  reason  for 
resorting  to  the  real  property.  The  cause  for  seeking  a 
sale  is  ordinarily  the  existence  of  debts,  legacies,  or  charges 
or  expenses  of  administration  and  the  want  of  moneys  in 
the  hands  of  the  executor  or  administrator  with  which  to 
pay  them,  and  as  it  is  usually  the  policy  of  the  law  not  to 
sacrifice  real  property  when  the  sale  of  personalty  will 
avoid  it,  the  inadequacy  of  personal  property  to  meet  the 
necessities  of  the  estate  must  generally  be  stated.  A  peti- 
tion alleging  that  the  estate  of  the  decedent  "is  owing 
debts  to  the  amount  of  three  hundred  and  fifty  dollars,  and 
that  the  personal  property  of  the  said  decedent  is  insutficient 
for  the  payments  of  the  debts  thereof,  and  that  the  will  of 
the  decedent  gives  no  power  ifco  sell  the  lands  of  said  estate 
for  the  payment  of  debts,"  justifies  the  granting  of  an 
order  of  sale,  or,  at  all  events,  is  sufiicient  to  protect  the  sale 
based  thereon  from  collateral  attack. ^  Though  a  statute 
declares  that  whenever,  after  inventory  and  appraisement, 
it  appears  that  the  personal  estate  of  any  decedent  is  in- 
sufficient to  discharge  the  just  debts,  resort  may  be  had 
to  the  real  estate,  and  that  the  petition  must  set  forth 
the  value  of  the  personal  property  according  to  the  inven- 
tory, a  petition  is  sufficient  to.  support  a  sale,  notwith- 
standing it  does  not  refer  to  any  inventory  or  appraisement, 
if  it  alleges  the  amount  and  value  of  the  estate  and  the 
debts  and  claims,  and  describes  the  property  sought  to  be 
sold  and  the  interest  of  the  decedent  therein. ^ 

AVhere,  as  in  California,  the  statute  requires  a  petition 
for  the  sale  of  real  property  to  describe  all  the  realty  of 
the  decedent  and  to  state  its  condition,  an  entire  omission 
to  comply  with  the  statute  seems  to  leave  the  petition  inade- 

'  Meadows  v.  Meadows,  73  Ala.  356;  Moore  v.  Cottingham,  113  Ala. 
148,  59  Am.  St.  Rep.  KX). 
2  Nichols  V.  Lee,  IG  Colo.  1 17. 

(5)  Co 


^     13  VOID    JUD.ICIAL    SALES. 

quatc  to  invoke  the  exercise  of  the  jurisdiction  of  the  court 
or  to  support  a  sale  founded  upon  its  order. ^  A  petition, 
the  only  statement  in  which  respecting  the  condition  or 
value  of  the  land  is  that  it  is  an  "unperfected  claim  under 
the  homestead  laws  of  Congress"  to  certain  land,  specific- 
ally describing  it,  is  fatally  defective,  because  it  cannot  be 
uscertained  therefrom  what  the  property  is  worth,  whether 
it  is  improved  or  unimproved,  productive  or  unproductive, 
occupied  or  vacant,  nor  is  there  anything  therein  from 
which  the  court  can  intelligently  exercise  its  judgment  in 
determinins:  whether  this  land  or  this  interest  therein  should 
be  sold. 2  A  description  of  a  city  lot  as  "unimproved,"  is 
a  sufiicient  statement  of  its  condition  to  give  jurisdiction  to 
the  court,  and  to  sustain  its  subsequent  order  directing  a 
sale  of  the  property.^  Where  the  petition  for  a  sale  de- 
scribed the  property  as  an  undivided  one-half  interest  in 
that  certain  piece  or  parcel  of  land,  with  the  improvements, 
giving  the  boundaries  of  the  lot,  and  stated  that  its  condi- 
tion was  "fair,"  and  its  value  four  thousand  nine  hundred 
dollars,  it  was  said  that  the  information  disclosed  by  this 
description  was,  that  the  property  was  improved,  and  its 
condition  fair,  and  that  "although  the  statement  was  not 
very  definite,  and  might  have  been  objected  to  at  the  hear- 
ing on  the  ground  of  uncertainty,"  yet  the  petition  "con- 
tained a  statement  which  purported  to  set  forth  the  con- 
dition of  the  property,  the  attention  of  the  court  was  chal- 
lenged to  its  merits,  and  it  was  authorized  to  determine 
whether  the  statement  was  sufficient.  The  court  had  juris- 
diction to  determine  whether  a  statement  that  the  condition 
of  the  property  was  "fair"  was  sufficient,  and  even  though 
it  erred  in  its  conclusion,  its  judgment  was  not  void."* 
When  the  application  is  to  sell  real  property  of  a  decedent 

J  Estate  of  Boland,  55  Cal.  310. 

2  Kertchem  v.  George,  78  Cal.  697. 

3  Richardson  v.  Butler,  82  Cal.  172,  16  Am.  St.  Rep.  101. 
■*  Be  Devincenzi's  Estate,  119  Cal.  498. 

66 


VOID    JUDICIAL    SALES.  §    13 

for  the  purpose  of  paving  debts,  legacies,  or  charges  of 
admin istratioD,  the  petition  should  describe  all  his  real 
property,  and  show  the  condition  of  each  parcel,  for  the 
purpose  of  enabling  the  court  to  decide  which  should  be 
sold  and  which  retained.  If,  on  the  other  hand,  the  peti- 
tion is  by  a  guardian  for  authority  to  sell  lands  of  his  ward, 
though  the  statute  declares  that  the  petition  shall  set  forth 
the  condition  of  the  estate  of  the  ward,  and  the  facts  and 
circumstances  on  which  the  petition  is  founded  tending  to 
show  the  necessity  or  expediency  of  the  sale,  "if  the  sale 
is  asked  on  the  ground  that  it  is  necessary,  there  is  the 
same  reason  for  requiring  a  statement  of  the  ward's  real 
estate  as  exists  in  the  ordinary  case  of  a  sale  by  an  executor 
or  administrator;  i.  e.,  to  enable  the  court  to  decide  what 
particular  part  it  is  best  to  sell.  But  if  the  sale  is  asked 
upon  the  ground  that  it  is  for  the  interest  of  the  ward  that 
some  portion  of  his  land  should  be  sold  and  the  proceeds 
invested,  it  is  manifest  that  the  condition  of  the  property 
to  be  sold  is  the  only  matter  to  be  inquired  into,  and  that 
the  pobcy  or  expediency  of  selling  it  is  in  no  wise  affected 
bv  the  condition  of  other  portions  of  his  estate.  The  be- 
trinnino-  and  end  of  the  inciuiry  in  such  case  is,  whether  the 
price  of  the  land  to  be  sold  can  be  invested  to  better  advan- 
tao-e  in  something  else,  and  a  petition  which  fairly  presents 
this  question  ought  to  be  sufficient  to  give  the  court  juris- 
diction to  make  the  sale."^ 

In  drafting  the  petition,  reference  may  be  had  to  some 
other  paper  on  file,  and,  by  such  reference,  this  paper  may 
l)c  made  a  part  of  the  petition.  The  petition,  for  instance, 
may  state  that  a  full  description  of  the  real  and  personal 
estate  can  be  ascertained  from  the  inventory  on  file.  Where 
this  is  done,  it  will  be  sufficient  that  this  jurisdictional  fact 
appears  from  the  inventory .^      But,  to  justify  a  reference 

'  Smith  V.  Biscailux,  83  Cal.  344. 

2Bent/,"8  Estate,  30  Cal.  G87;  Stuart  v.  Allen,  16  Cal.  .^01,  70  Am. 
Dec.  651 ;  Sheldon  v.  Wright,  7  Barb.  47. 

67 


§     1,)  VOID    JUDICIAL    SALES. 

to  the  inventory  or  other  paper  on  tile,  "it  must  have  been 
referred  to  in  the  petition,  so  as  to  become  a  part  of  it,  for 
the  purpose  of  reference;"^  and  it  seems  that  the  refer- 
ence made  to  the  inventory  or  other  papers  on  file,  must 
designate  the  imperfection  or  defect  which  it  was  intended 
to  supply.  Thus,  where  the  reference  to  the  inventory  pur- 
ports to  be  "for  greater  certainty,"  without  stating  for 
what  the  reference  was  made,  whether  for  description,  or 
value,  or  condition,"  the  court  said:  "We  think  this  ref- 
erence was  insufficient  to  incorporate  the  inventory  as  a 
part  of  the  petition  as  to  description,  or  value,  or  condi- 
tion." 2  In  this  case  the  inventory  mentioned  several  pieces 
of  real  property,  some  of  which  were  sufficiently,  and  others 
insufficiently,  described,  The  statute  required  the  descrip- 
tion of  all  the  lands  of  the  decedent,  in  any  petition  for 
their  sale.  The  object  of  this  requisition  was  to  disclose  to 
the  court  all  the  real  property  of  the  decedent,  to  aid  in 
determining  the  necessity  for  the  sale  of  the  whole  or  any 
part  of  the  lands,  and  if  of  a  part  only,  then  to  advise  the 
court  as  to  which  part.  Hence,  it  was  held  that  the  fact 
that  some  of  the  parcels  were  sufficiently  described  does 
not,  even  as  to  those  parcels,  cure  the  defect  arising  from 
the  imperfect  description  of  the  other  parcels.^  Though 
the  statute  requires  the  petition  to  describe  all  the  real 
property  of  the  decedent,  it  is  evident  that  the  omission  of 
one  or  more  parcels  from  the  petition  cannot  impair  the 
jurisdiction  of  the  court  to  act  upon  it  and  to  grant  an  order 
pursuant  to  its  allegations.  They  must  be  accepted  as  true 
upon  collateral  attack,  and  the  order  of  sale  cannot  be  there 
invalidated  by  showing  an  omission  of  some  parcel  by  mis- 
take or  otherwise.*      A  requirement  that  the  petition   state 

1  Gregory  v.  Taber,  19  Cal.  409,  79  Am.  Dec.  219. 

2  Wilson  v.  Hastings,  66  Cal.  243. 

3  Ibid. 

.  *  In  re  Faulkner,  57  Hun,  586,  10  N.  Y.  Supp.  325;  Ackerson  v. 
Orchard,  7  Wash.  377. 

68 


VOID    JUDICIAL    SALES.  §     15 

the  valuation  of  each  distinct  parcel  of  real  estate  is  suffi- 
ciently met  where  the  tract  consists  of  five  parcels,  and  the 
description  shows  that  they  lie  together,  forming  one  par- 
cel, and  that  the  valuation  thereof  is  about  four  thousand 
dollars.! 

§  14.  Petition  Need  Not  Be  True. — The  jurisdiction  of 
the  court  over  the  subject-matter  attaches  on  the  filing  of  a 
petition  sufficient  in  form.  The  matter  stated  in  the  peti- 
tion may  or  may  not  be  true.  The  functions  of  the  court 
are  of  such  a  character  that  it  may  inquire  into  the  truth  or 
falsity  of  the  petition.  The  petition  may  be  regarded  as  a 
complaint.  The  heirs,  when  jurisdiction  over  them  is 
obtained,  may  be  treated  as  entering  a  general  denial.  The 
order  of  the  court,  grantins;  or  refusing  the  praver  of  the 
petition,  is  in  the  nature  of  a  judgment  conclusively  estab- 
lishino;  that  the  sale  is  or  is  not  necessarv.  If  erroneous, 
it  must  be  corrected  by  appeal,  or  some  other  appropriate 
proceeding.  It  cannot  be  collaterally  avoided  by  showing 
that  the  petition  was  false. ^ 

§   15.  Cases  Holding  that  No  Notice  is  Necessary. — AVe 

have  already  spoken  of  the  proceeding  in  probate  to  obtain 
a  sale  of  real  estate  as  an  independent,  adversary  proceed- 
ing in  jiersonam.  If  it  is,  in  fact,  such  a  proceeding,  then 
the  defendants  must  be  brought  before  the  court  by  some- 
thing which  is  equivalent  to  the  service  of  process,  and 
given  an  opportunity  of  resisting,  in  case  they  deem  resist- 
ance proper  to  be  made.  This  need  not,  we  think,  be  any 
new  or  independent  notice,  unless  the  statute  so  prescribes. 
It   may,  on  the  other  hand,  expressly  authorize  the  court, 

1  In  re  McGee,  38  N.  Y.  Supp.  10G2,  5  App.  Div.  527. 

2  Camden  V.  Plain,  91  Mo.  117;  Seymour  v.  Rickstts,  21  Neb.  240; 
Jackson  v.  Crawford,  12  Wend.  .533;  Fitcb  v.  Miller,  20  Cal.  382;  Stuart 
V.  Allen,  10  Cal.  473,  70  Am.  Dec.  551;  llaynes  v.  Meeks,  20  Cal.  288; 
McCauley  V.  Harvey,  40  Cal.  497;  Grignon's  Lessee  v.  Astor,  2  How. 
(U.  S.)  339;  Bowen  v.  Bond,  80  111.351;  Grayson  v.  Woddle,03  Mo.  523; 
poit,  sec.  20. 

69 


§    15  VOID    JUDICIAL    SALES. 

:it  specified  stages  of  the  administratioD,  as,  on  the  settle- 
ment of  the  administrator's  accounts,  to  direct  the  sale  of 
l)r()i)erty,  whether  real  or  personal,  when  necessity  therefor 
api)ears.^  Under  such  a  statute  the  jurisdiction  of  the 
courl  may  rest  upon  the  original  grant  of  administration,  and 
the  notice,  if  any,  required  to  precede  it.  The  more  difficult 
question  is,  whether,  when  the  statute  expressly  requires 
some  notice  to  be  given  of  an  application  to  sell«the  prop- 
erty of  a  decedent  or  of  a  minor  or  other  incompetent  per- 
son, such  requirement  may  not  be  directory  merely,  more 
especially  if  the  proceeding  is  on  behalf  of  a  minor  or  other 
incompetent  acting  by  his  regularly  appointed  and  qualified 
guardian.  Nearly  all  the  statutes  require  some  order  to 
show  cause  against  the  petition  to  issue,  and  to  be  served 
on  the  parties  in  interest,  either  personally  or  by  pub- 
lication. In  a  few  of  the  States  this  requirement  is  not 
jurisdictional.  The  purchaser  need  not,  in  those  States,  ask 
whether  the  notice  to  show  cause  against  the  petition  was 
or  was  not  given.  The  sale  is  valid  if  supported  by  a  suf- 
ficient petition  and  an  order  of  sale  made  thereon.  "On  a 
proceeding  to  sell  the  real  estate  of  an  indebted  estate  there 
are  no  adversary  parties,  the  proceeding  is  in  retn,  the 
administrator  represents  the  land;  they  are  analogous  to 
proceedings  in  the  admiralty,  where  the  only  question  of 
jurisdiction  is  the  power  of  the  court  over  the  thing — the 
subject-matter  before  them — without  regard  to  the  persons 
Avho  may  have  an  interest  in  it;  all  the  w^orkl  are  parties. 
In  tlie  orphan's  court,  and  all  courts  who  have  power  to 
sell  the  estates  of  intestates,  their  action  operates  on  the 
estate,  not  on  the  heirs  of  the  estate;  a  purchaser  claims, 
not  their  title,  but  one  paramount.  The  estate  passes  to 
him  liy  operation  of  law.  The  sale  is  a  proceeding  in  7'em, 
to  which  all  claiming  under  the  intestate  are  parties."^ 

'  Day  V.  Graham,  97  Mo.  398;  Hutchinson  v.  Shelley,  133  Mo.  400. 
2  Grignon's  Lessee  v.  Astor,  2  How.  (U.  S.)  338;  Beauregard  v.  New 
Orleans,   18  How.  (U.  S.)  497;   Comstock  v.  Crawford,  3  Wall.  396; 

70 


VOID    JUDICIAL    SALES.  §    15 

This  position  is  maintained  more  frequently  with  respect 
to  guardian's  sales  than  with  respect  to  those  made  by 
executors  or  administrators,  and  with  more  plausibility. 
For  the  petition  for  sale  filed  by  a  guardian,  it  is  Avith 
much  force  insisted,  is  merely  the  petition  of  the  ward  act- 
ing through  his  duly  accredited  agent.  Under  this  view 
the  ward  is,  in  legal  effect,  the  petitioner,  and  there  is  no 
necessity  of  advising  him  of  the  existence  of  his  own  peti- 
tion and  warning  him  that  it  will,  at  a  certain  time,  be 
granted.  If  any  notice  is  required  by  statute,  it  is  claimed 
that  such  notice  is  for  the  protection  of  third  persons  whose 
interests  may  somehow  be  affected,  and  that  its  omission 
in  nowise  impairs  the  force  of  the  proceedings  as  against 
the  Avard.^  We  think  the  weight  of  authority  and  of  reason 
supports  this  view,  but  its  correctness  is  by  no  means  uni- 
versally conceded. 2  In  one  State,  a  distinction  was  made 
between  petitions  by  guardians  for  authority  to  sell  lands 
for  the  maintenance  and  education  of  their  wards  and  peti- 
tions to  raise  money  to  pa}-^  debts.  The  latter,  it  was  said, 
might,   perhaps,   be    regarded    as  proceedings   adverse  to 

Tongue  v.  Morton.  6  H.  &  J.  21;  McPherson  v.  Cunditf,  11  S.  &  R.  422, 
14  Am.  Dec.  G42;  Gager  v.  Henry,  o  Saw.  C.  C.  237;  Doe  v.  McLoskey, 
1  Ala.  708;  Perkins  v.  Winter,  7  Ala.  855;  Matheson  v.  Hearln,  29  Ala. 
210;  Duvars  Heirs  v.  P.  and  M.  Bank,  10  Ala.  636;  Field's  Heirs  v. 
Goldsby,  28  Ala.  224;  Satcher  v.  Satcher's  Admr.,  41  Ala.  39,  91  Am. 
Dec.  498;  Rogers  v.  Wilson,  13  Ark.  507;  Sheldon  v.  Xewton,  3  Ohio  St. 
494;  George  v.  Watson,  19  Tex.  354;  Mohr  v.  Manierre,  101  U.  S.  417,  9 
Ch.  L.  X.  270;  Ewing  v.  Higby,  7  Ohio,  pt.  1,  p.  198,  28  Am.  Dec.  633; 
Robb  V.  Irwin,  15  Ohio,  689;  Snevely  v.  Low,  IS  Ohio,  368;  Benson  v. 
Cilley,  8  Ohio  St.  614 — overruling  Adams  v.  Jeffries,  12  Ohio,  272; 
Lyons  v.  Hamner,  84  Ala.  197.  5  Am.  St.  Rep.  303;  Friedman  v.  Sham- 
blin.  117  Ala.  4.54;  Blanchard  v.  Webster,  62  N.  II.  467. 

iMohr  v.  Porter,  51  Wis.  487;  Mohr  v.  Manierre,  101  U.  S.  417,  9 
Ch.  L.  X.  270;  Mulford  v.  Beveridge,  78  111.  ^.58;  Spring  v.  Kane,  86  HI. 
.580;  Montgomery  v.  Johnson,  34  Ark.  74;  Daughtry  v.  Themeatt,  105 
Ala.  615,  53  Am.  St.  Rep.  146;  Scarf  v.  Aldrich,  97  Cal.  360,  33  Am.  St. 
Rep.  190;  Shaw  v.  Ritchie,  136  U.  S.  548. 

2  Washburn  v.  Carmichael,  32  Iowa,  475;  Lyon  v.  Vanatta,  35  Iowa, 
521 ;  Rankin  v.  Miller,  43  Iowa,  11 ;  Rule  v.  Branch,  .58  Miss.  552. 

71 


§    16  VOID    JUDICIAL    SALES. 

minors,  and,  therefore,  not  sustainable,  unless  the  statutory 
notice  was  given,  but  that  the  former  were,  in  effect,  pro- 
ceedings, not  only  advantageous  to  the  wards,  but  must  be 
deemed  to  be  made  on  their  application.  "The  authori- 
ties," said  the  court,  "are  as  conflicting  as  they  are  numer- 
ous, but  we  think  that  the  weight  of  authority  is  that  such 
a  proceeding  is  one  in  rem — a  proceeding  in  behalf  of  the 
ward  and  not  adversary  to  him — and  that  notice  to  such 
ward  is  not  essential  to  the  jurisdiction  of  the  court  to 
grant  the  license  for  the  sale."^ 

§  10.  Notice  of  Petition — Cases  Holding  it  Indispens- 
able.— A  very  decided  majority  of  the  authorities  is  op- 
posed to  the  principles  stated  in  the  preceding  section,  or, 
at  least,  to  their  application  to  executors'  and  adminis- 
trators' sales.  This  majority  declares  that  the  proceeding, 
to  obtain  an  order  to  sell  real  estate,  is  a  new  and  independ- 
ent proceeding  in  j^^^'sonam,  in  which  the  petitioner  is  the 
plaintiff,  the  petition  is  the  complaint,  the  parties  whose 
property  is  to  be  sold  are  the  defendants,  and  the  order  to 
show  cause,  or  the  notice  to  appear  is  the  summons ;  that 
the  defendants  are  not  in  court  until  this  summons  is 
served,  or  its  service  has  been  waived  by  persons  competent 
to  waive  it;  and  that  whenever  it  is  conceded  or  shown  that 
any  person  interested  was  not  summoned  to  appear,  sub- 
stantially as  provided  by  statute,  the  whole  proceeding,  as 
against  him,  is  utterly  void.^     The  administrator,  as  such, 

1  Myers  v.  McGavock,  39  Neb.  843,  42  Am.  St.  Eep.  627. 

2  In  re  Mahoney,  34  Hun,  501 ;  Jenkins  v.  Young,  85  Hun,  569 ;  Hal- 
leck  V.  Moss,  17  Cal.  339;  Coy  v.  Downie,  14  Fla.  544;  Clark  v.  Thomp- 
son, 47  111.  25,  95  Am.  Dec.  457;  Doe  v.  Bowen,  8  Ind.  197,  65  Am.  Dec. 
758 ;  Gerrard  v.  Thompson,  12  Ind.  636 ;  Babbitt  v.  Doe,  4  Ind.  355 ;  Good 
V.  Norley,  28  Iowa,  188;  Washburn  v.  Carmichael,  32  Iowa,  475;  Valle 
V.  Fleming,  19  Mo.  454,  61  Am.  Dec.  566;  Campbell  v.  Brown,  6  How. 
(Miss.)  106;  Winston  v.  McLendon,  43  Miss.  554;  Puckett  v.  McDonald, 
6  How.  (Miss.)  269;  Vick  v.  Mayor,  1  How.  (Miss.)  379,  31  Am.  Dec 
169;  Hamilton  v,  Lockhart,  41  Miss.  460;  French  v.  Hoyt,  6  N.  H.  370, 
25  Am.  Dec.  464;  Corwin  v.  Merritt,  3  Barb.  341;  Schneider  v.  McFar- 

72 


VOID    JUDICIAL    SALES.  §     17 

has  no  control  over  the  real  estate  left  by  the  intestate. 
His  authority  to  sell,  if  it  exists,  was  conferred  by  the 
orders  of  the  surrogate  and  the  other  proceedings  before 
him.  The  latter  derives  his  power  from  the  statutes,  and 
in  order  to  confer  the  authority  upon  the  administrator  to 
transfer  the  title  to  the  land,  and  thus  disinherit  the  heirs 
of  the  intestate,  it  is  recjuisite  that  the  directions  of  the 
statute,  so  far  as  they  relate  to  the  acc|uiring  of  jurisdiction 
of  the  subject-matter,  and  of  the  parties  to  be  affected  by 
the  proceedings,  should  be  strictly  complied  with.  These 
principles  are  elementaiy,  and  no  citation  of  authority  to 
sustain  them  is  necessary.^ 

§  17.  The  Service  of  Notice  on  a  Minor  Cannot  be 
"Waived  nor  Dispensed  With. — It  cannot  be  waived  by  the 
minor,  because  he  is  incompetent  to  act  for  himself. ^ 
Neither  can  it  be  waived  by  a  guardian,  unless  the  statute 
in  direct  terms  invests  him  with  that  power. "^  Nor  can  the 
court  by  any  means  exonerate  itself  from  complying  with 
the  statute.     It   cannot,   Avithout  service  of  the  notice  on 

land,  2  X.  Y.  459;  Dakin  v.  Hudson,  6  Cow.  222;  Fiske  v.  Kellogor,  3 
Or.  503;  Taylor  v.  Walker,  1  Heisk.  734;  Gibbs  v.  Shaw,  17  Wis.  197; 
Blodojett  V.  Ilitt,  29  Wis.  169;  Beckett  v.  Selover,  7  Cal.  215,  68  Am.  Dec. 
237;  Rankin  v.  Miller,  43  Iowa,  11;  Mickel  v.  Hicks,  19  Kan.  578.  27  Am. 
Rep.  161;  Rule  v.  Broach,  58  Miss.  552;  Wisner  v.  Brown,  50  Mich.  553; 
rinckney  v.  Smith,  26  Hun,  524;  Bloom  v.  Burdick,  1  Hill,  130,  37  Am, 
Dec.  299;  Dorrance  v.  Raynsford,  67  Conn.  1,  52  Am.  St.  Rep.  266; 
Chicago,  etc.,  Co.  v.  Cook,  43  Kan.  83;  Cunningham  v.  Anderson,  107 
Mo.  371,  28  Am.  St.  Rep.  417;  Hutchinson  v.  Shelly,  133  Mo.  400;  Perry 
V.  Adams,  98  X.  C.  167,  2  Am.  St.  Rep.  320;  Harrison  v.  Harrison,  106 
N.  C.  282. 

1  Sibley  v.  Waflle,  16  X.  Y.  185. 

2  Winston  v.  McLendon,  43Miss.  254;  Daingerfield  v.  Smith,  83Va.81. 

3  Doe  V.  Anderson,  5  Ind.  33;  Dickison  v.  Dickison,  124  111.483;  Hick- 
enbotham  V.  Blackledge,  54  111.  316;  Hough  v.  Doyle,  8  Blackf.  300; 
IngersoU  V.  Ingersoll,  .54  Tex.  155;  Helms  v.  Chadbourne,  45  Wis.  60; 
Greenman  V.  Harvey,  53  111.386;  Ingersoll  v.  Mangam,  84  X.  Y.  622; 
Roberts  v.  Roberts,  61  Ohio  St.  96.  Nor  has  an  attorney  any 
power  to  enter  an  appearance  for  a  minor  not  served  with  process. 
Bonnell  v.  Holt,  89  111.  71. 

73 


§    17  VOID    JUDICIAL    SALES. 

the  minor,  ;n)point  any  guardian  ad  litem  for  him.  The 
appointment  of  such  guardian  and  his  subsequent  appear- 
ance in  the  cause  as  the  representative  of  the  minor  cannot 
cure  any  jurisdictional  defect,  nor  tend  to  the  validation  of 
a  proceeding  otherwise  void.^  Service  of  notice  on  the 
guardian  of  a  minor  does  not,  in  the  absence  of  a  statute  to 
that  effect,  dispense  with  the  necessity  for  serving  the 
minor  himself  .^  In  New  York,  a  guardian  must  be  ap- 
pointed for  minor  heirs  on  filing  the  petition,  and  notice 
must  thereafter  be  given  to  heirs.  The  giving  of  the  notice 
in  advance  of  the  appointment  of  the  guardian  is  invalid. "^ 
If  the  person  applying  for  the  license  to  sell  is  also  the 
guardian  of  the  minors,  his  position  as  petitioner  is  incom- 
patible with  his  duty'as  guardian.  He  cannot,  therefore, 
represent  the  heir,  and  the  latter  must  have  another  repre- 
sentative appointed  for  the  occasion.*  In  Indiana,  the 
statute  authorizes  the  guardian  of  a  minor,  on  the  presenta- 
tion of  a  petition  for  the  sale  of  lands  in  which  he  is  inter- 
ested, to  appear  for  him  and  consent  to  the  sale.  This  was 
held  to  confer  authority  upon  a  person,  filling  the  offices  of 
administrator  and  guardian,  to  petition  for  a  sale  in  his 
former  capacity,  and  to  assentto  it  in  the  latter.^  In  Florida, 
no  service  of  process  on  an  infant  heir  is  required.  The 
court  must  appoint  a  guardian  ad  litem.  But  if  no  guard- 
ian ad  litem  is  appointed,  and  the  general  guardian  is  served 
with  process  and  appears  and  represents  the  minor,  the 
proceedings  are  not  void.*^     In  Mississippi,  if  the  guardian 

1  Chambers  V.  Jones,  72  111.  275;  Moore  v.  Starks,  1  Ohio  St.  369; 
Good  V.  Norley,  28  Iowa,  188;  Clark  v.  Thompson,  47  111.  25,  95  Am. 
Dec.  457. 

2  Clark  V.  Thompson,  47  111.  25. 

3  Ackleyv.  Dygert,  33  Barb.  176;  Havens  V.  Sherman,  42  Barb.  636; 
Schneider  v.  McFarland,  2  iN".  Y.  4.59;  Deans  v.  Wilcoxon,  25  Fla.  980. 

-*  Havens  v.  Sherman,  42  Barb.  636;  Schneider  v.  MeFarland,  2  N.  Y. 
459;Townsendv.  Tallant,  33  Cal.  52,  91  Am.  Dec.  617;  Kennedy  v. 
Gaines,  51  Miss.  625. 

5  .Jones  V.  Levy,  72  Ind.  586. 

«  Price  V.  Winter,  15  Fla.  66. 

74 


VOID    JUDICIAL    SALE8.  §     18 

of  a  minor  petitions  for  the  sale  of  the  lands  of  his  ward, 
no  notice  need  be  given  the  latter.  A  summons  must  issue 
to  the  co-heirs,  and  also  to  three  of  the  nearest  relatives  of 
the  minor  living  in  the  State.  The  omission  to  summon 
these  relatives  is  fatal  to  the  subsequent  proceedings.^ 

§  18.  The  Notice  Must  be  Given  in  the  Manner  Pre- 
scribed by  Statute,  or  it  is  Inoperative.^ — Sometimes  the 
manner  of  giving  notice  is  not  specified  by  the  statute,  but 
is  left  for  the  direction  of  the  court,  or,  though  the  statute 
specifies  the  form  of  the  notice,  the  authority  to  give  it 
must  be  found  in  some  order  of  court.  In  either  case, 
it  seems  evident  that  the  direction  of  the  court  is  indispens- 
able, and  the  one  given  must  be  sub.stantially  followed.^  A 
notice  or  citation  may  be  assailed  on  the  ground  (1)  that  it 
was  not  given  for  the  time  required,  or  (2)  that  it  was  not 
published  or  otherwise  served  in  the  manner  provided  by 
law  or  the  order  of  the  court,  or  (3)  that  with  respect  to 
its  contents  it  does  not  substantially  correspond  with  such 
law  or  order.  If  the  notice  attempts  a  description  of  the 
land  sought  to  be  sold,  the  description  must  be  correct.  A 
license  to  sell  one  tract  of  land,  founded  on  a  notice  desig- 
nating a  different  tract,  is  void.^  If  a  statute  directs  notice 
to  be  given  by  personal  service,  unless  publication  thereof 
is  ordered  by  the  court,  a  publication  is,  in  the  absence  of 
such  order,  inoperative.''  If  a  copy  of  the  petition  and  ac- 
count are  required  to  be  served,  the  service  of  a  summons 
in  their  stead  is  unauthorized,  and,  therefore,  void.^  If  a 
publication  is  directed  to  be  made  in  a  specified  newspaper 

^  Stampley  v.  King,  51  Mies.  728. 

2Uerdman  v.  Short,  18  111.  59;  Gibson  v.  Roll,  27  111.  190,83  Am.  Dec. 
181;  Morris  v.  Hogle,  37  111.  150,  87  Am.  Dec.  243;  Schnell  v.  Chicago, 
38  111.  383,  87  Am.  Dec.  304 ;  Bree  v.  Bree,  51  111.  307. 

3  Cunningham  v.  Anderson,  107  Mo.  371,  28  Am.  St.  Rep.  417. 

*  Frazier  v.  Steenrod,  7  Iowa,  339,  71  Am.  Dec.  447.  Contra:  Maurr 
V.  Parrish,  20  Ohio  St.  G3G. 

5  Ilalleck  V.  Moss,  17  Cal.  .339. 

*  Johnson  v.  Johnson,  30  111.  223. 

75 


§18  A'OID    JUDICIAL    SALES. 

for  four  weeks,  it  cannot  be  made  in  that  paper  for  three 
Nveeks,  and  in  another  paper  the  remaining  week.^     If  the 
return  day  named  in  the  order  to  show  cause,  though  fixed 
hv  the  court,  is  not  a  day  on  Avhich  it  can  by  law  be  made 
li'turuMble,''  or  is  not  sufficiently  distant  to  permit  the  giv- 
ino-  of  the  notice  for  the  full  time  prescribed  by  law,  the 
subsc(iuent  proceedings  based  on  such  order  to  show  cause 
are  void.^     The  return  day  may,  by  the  court,  be  fixed  at  a 
more  distant  period  than  that  sanctioned  by  the  statute, 
and  it  has  been  insisted  that  where  such  is  the  case,  as  the 
proceeding  is  purely  statutory,  and  jurisdiction  depends  on 
compliance  with  the  statutory  requirements,  the  court  has 
no  authority  to  proceed.     In  a  case  involving  this  question, 
the  date  fixed  was  only  one   day  later  than  that  permitted 
by  the  statute,  and  the  court  was  of  the  opinion  that  this 
was  not  a  substantial  departure  from  the  requirements  of 
the  statute.     The  court  said  :    "What  the  legislature  had  in 
view  was  the  purpose  of  granting  full  opportuninty  to  all 
persons  in  interest  to  be  heard  in  the  proceeding.     It  is 
obvious  that  the  addition  of  a  day  to  the  statutory  time  can- 
not be  deemed  to  be  any  impairment  of  that  opportunity, 
or  to  work  any  possible  prejudice  of  rights.     If  it  was  an 
irregularity  at  all,  it  was  not  one  which  abridges  the  rights 
of  any  one,  and  therefore  could  not  affect  the  foundation  of 
the  proceedings."^     Ordinarily,  there  is  a  wide  distinction 
between  the  effect  of  process  defectively  served  and  process 
not  served  at  all;    and  this   distinction,  to  some  extent  at 
least,  applies  to  proceedings  hi  probate.    Hence,  it  has  been 
held  that,  under  a  statute  requiring  the  notice  of  applica- 
tion for  an  order  of  sale  to  be  personally  served  on  a  minor, 
a  return  showing  service  by  reading  the  notice  to  the  minor 
and  leaving  a  copy  with  his  father,  is  sufficient  to  maintain 

1  Townsend  v.  Tallant,  33  Cal.  45,  91  Am.  Dec.  617. 

2  Haws  V.  Clark,  37  Iowa,  355. 

3  Stilwell  V.  Swarthout,  81  N.  Y.  109. 

4  O'Connor  v.  Huggins,  113  X.  Y.  511. 

76 


VOID    JUDICIAL    SALES.  §     19a 

the  jurisdiction  of  the  court  over  such  minor,  because  the 
case  "is  not  one  of  no  notice,  but  of  defective  service  of 
notice."^ 

§  19,  The  Notice  Must  be  Given  for  the  Time  Pre- 
scribed.— The  publication  of  a  notice  for  a  shorter  time 
than  that  sanctioned  by  Law  is  void,  and  can  impart  no 
validity  to  a  sale  or  other  subsecjuent  proceeding  resting 
upon  it. 2  This  is  true,  although  the  time  is  shortened  by 
an  order  of  court  in  a  case  where  the  statute  does  not  give 
the  court  that  power. '^  If  a  statute  requires  the  notice  to  be 
published  for  three  successive  weeks,  the  first  publication 
to  be  six  weeks  before  the  presentation  of  the  petition,  and 
the  notice,  as  published,  designates  a  day  for  the  presenta- 
tion less  than  six  weeks  from  the  date  of  the  first  pub- 
lication, the  notice  is  void,  and  cannot  be  made  valid  by 
presenting  the  petition  at  a  later  day  than  that  specified  in 
the  notice.*  No  notice  need  be  given  to  persons  in  adverse 
possession,  unless  the  statute  directs  it.^*  Giving  notice  to 
a  person  acting  in  one  capacity  seems  not  to  effect  him 
Avhen  claiming  in  another  capacity.  Hence,  a  consent  given 
by  a  woman  as  guardian  of  minors  was  held  not  to  preju- 
dice her  claim  as  widow  of  the  decedent.''' 

§  19a.  Witli  Respect  to  Irregularities  Occurring  after 
Giving  Notice  of  tlie  Application  and  before  entering  the 
order  of  sale,  we  apprehend  that  the  true  rule  upon  the 
subject  is  that  stated  by  the  Supreme  Court  of  Alabama  as 
follows:  "It  has  long  been  the  settled  doctrine  of  this 
court  that  such  irregularities  and  defects  in  the  proceedings 

'  Biince  V.  Bunce,  59  Iowa,  532, 

2  Tovvnsend  v,  Tallant,  33  Cal.  45,  91  Am,  Dec,  G17;  Corwin  v.  Mer- 
rill, 3  Barb.  3il ;  Monahan  v,  Vandyke,  27  III.  155;  Havens  v.  Sherman, 
42  Barb.  636;  Young  v,  Downey,  145  Mo.  250,  GS  Am.  St.  Rep.  5GS. 
Contra,  by  statute.  Woods  v.  Monroe,  17  Mich.  245. 

3  Havens  v.  Sherman,  42  Barb,  G3G, 

*  Gibson  v.  Roll,  30  111,  178,  83  Am.  Dec,  181. 
'  Yoemans  v.  Brown,  8  Met.  51. 
«  Helms  v.  Love,  41  Ind.  210. 

77 


§     l[)a  VOID    JUDICIAL    SALES. 

to  sell  lands  of  a  decedent  for  the  payment  of  debts  are 
unavailing  in  a  collateral  proceeding  to  support  the  validity 
of  the  sale  or  the  title  of  one  claiming  under  it.  This  doc- 
trine is  a  rule  of  property  which  judicial  power  cannot 
cluun'-e.  When  the  record  affirmatively  shows  that  the 
court  had  jurisdiction  to  order  the  sale  by  a  petition  setting 
forth  the  necessary  jurisdictional  facts,  that  the  land  w^as 
sold  by  an  administrator  under  its  order,  the  sale  confirmed, 
the  purchase  money  paid,  and  a  deed  executed  to  the  pur- 
chaser in  obedience  to  the  court's  mandate,  the  action  of 
the  court  is  conclusive  until  vacated  in  a  direct  proceeding, 
and  neither  the  sale  nor  the  title  of  the  purchaser  thereunder 
can  be  collaterally  impeached  on  account  of  any  irregulari- 
ties in  the  proceedings.^  By  statute, ;in  several  of  the  States, 
the  court  is  authorized  to  appoint  attorneys  or  guardians  ad 
litem  to  represent  minors  or  absentees  who  may  be  interested 
in  the  estate.  It  is  believed  that  the  action  or  non-action 
of  the  court  is  not  jurisdictional,  and  hence  that  the  validity 
of  an  order  of  sale  cannot  be  collaterally  attacked  on  the 
ground  either  of  failure  to  appoint  such  attorney  or  guard- 
ian, or  the  appointment  of  a  person  not  qualified  to  act.^ 
The  cases  holding  to  the  contrary  are  chiefly  those  in  which 
no  notice  or  citation  was  required  by  the  statute  to  be 
given. -^  In  Massachusetts,  a  statute  declaring  that  the  court 
shall  in  every  case  appoint  a  suitable  person  '  to  appear  and 
act  therein  as  the  next  friend  of  all  minors,  who  are  or  may 
become  interested,'  was  regarded  as  mandatory,  and  not  as 
directory."  "The  object  of  the  provision,"  said  the 
court,  "  is  to  protect  the  interests  jpf  the  persons  described, 

1  Friedman  v.  Shamblin,  117  Ala.  454;  Orman  v.  Bowles,  18  Colo.  463. 

2  Friedman  r.  Siiamblin,  117  Ala.  454 ;  Orman  v.  Bowles,  18  Colo.  463 ; 
Barnett  v.  Wolf,  70  111.  76;  Clark  v.  Hillis,134  Ind.  421 ;  Myers  v.  Davis, 
47  Iowa,  325;  Oliver  v.  Park,  101  Ky.  1;  Keller  v.  Wilson,  90  Ky.  350; 
Coonv.  Fry,  6  Mich.  506;  Overton  v.  Johnson,  17  Mo.  442;  McClay  v. 
Foxworthy,  18  Neb.  295;  Boody  v.  Emerson,  17  N.  H.  577;  Jenkins  v. 
Young,  43  Hun,  194. 

3  Price  V.  Winter,  15  Fla.  66 ;  Schneider  v.  McFarland,  2  N.  Y.  459. 

78 


VOID    JUDICIAL    SALES.  §    20 

and  in  order  to  accomplish  that  purpose  the  appointment 
and  qualification  of  the  person  appointed,  and  his  examina- 
tion and  the  subject-matter  of  the  petition,  should  precede 
and  not  follow  the  entry  of  the  decree  prayed  for.  In  the 
nature  of  things,  the  persons  represented  are  not  and  can- 
not be  before  the  court ;  and  justice  requires  that  before  a 
decree  can  be  passed  that  shall  conclude  their  rights  their 
representatives  should  be  in  a  position  to  be  heard  respect- 
ing it."^ 

§  20.  The  Order  of  Sale  and  its  Effect  as  an  Adju- 
dication.— If,  upon  hearing  of  the  petition,  the  court  is 
satisfied  that  a  proper  case  exists,  it  will  enter  an  order  or 
license  for  the  sale  of  the  land.  Without  such  license  or 
order  an  administrator  or  guardian  is  not  authorized  to  pro- 
ceed, and  any  sale  he  may  make  must  be  treated  as  having 
no  support  in  law.^  If  the  court  had  jurisdiction  this 
order,  until  vacated  or  reversed,  is  binding  upon  all  parties 
in  interest.  The  purchaser  under  it  is  in  no  danger  of 
losing  his  title  by  proof  being  made  that  the  order  was 
erroneously  given.  It  cannot  be  collaterally  attacked  for 
error,  fraud  or  irregularity,  if  the  court  had  jurisdiction.-* 
When  jurisdiction  is  once  obtained  over  a  proceeding,  the 
decision  of  the  court  is  always  conclusive  on  the  j)arties  if 

1  Pratt  V.  Bates,  IGl  Mass.  315. 

2  Hutchinson  v.  Shelley,  133  Mo.  400;  Broadwater  v.  Richards.  4 
Mont.  SO;  Hunter  v.  Hunter,  58  S.  C.  382;  Collins  v.  Ball,  82  Tex.  250, 
27  Am.  St.  Rep.  877. 

=  Freeman  on  Judgments,  sec.  319a;  Stow  v.  Kimball,  28  111.  93; 
Beckett  v.  Selover,  7  Cal.  215,  68  Am.  Dec.  237;  Farrington  v.  King,  1 
Bradf.  182;  Spragins  v.  Taylor,  48  Ala.  520;  .Jackson  v.  Robinson,  4 
Wend.  437;  Boyd  v.  Blankman,  29  Cal.  19,  87  Am.  Dec.  14G;  Meyer  v. 
McDougal,  47  111.  278;  Carter  v.  Waugh,  42  Ala.  452;  Morrow  v.  Weed, 
4  Iowa,  77,  06  Am.  Dec.  122;  Atkins  v.  Kinman,  20  Wend.  241,  32  Am. 
Dec.  534;  Mulford  v.  Stalzenback,  46  111.303;  Savage  v.  Benham,  17 
Ala.  119;  Sprigg's  Estate,  20  Cal.  121;  Giddings  v.  Steele,  28  Tex.  750, 
91  Am.  Dec.  336;  Gurney's  Succession,  14  La.  Ann.  632;  Hatcher  v. 
Clifton,  33  Ala.  301 ;  Walker  v.  Morris,  14  Ga.  323;  Barbee  v.  Perkins, 
23  La.  Ann.  331 ;  Gordon  v.  Gordon,  55  N.  H.  399. 

79 


fi    20  VOID    JUDICIAL     SALES. 

it  keeps  within  the  limits  of  its  jurisdiction,  unless  reversed 
upon  appeal,  or  by  some  other  proceeding  sanctioned  by 
law  for  the  purpose  of  correcting  errors  of  proceeding  or 
decision.  This  rule  applies  to  courts  of  inferior,  limited  or 
special  jurisdiction,  as  well  as  to  those  of  the  highest  rank 
and  most  comprehensive  authority.  When  a  court  grants 
an  order  of  sale,  and  in  pursuance  of  such  order  the  prop- 
erty thereby  authorized  to  be  sold  is  sold,  the  purchaser,  to 
maintain  his  title,  is  not  required  to  re-establish  the  facts 
which  the  court  must  have  found  to  be  true  before  it  entered 
such  order,  nor  yet  to  defend  the  legal  conclusions  which 
the  court  drew  from  such  facts.  If  any  errors  were  com- 
mitted, as  in  the  admission  or  rejection  of  evidence,  or  in 
making  findings  of  fact,  express  or  implied,  not  sustained 
by  the  evidence,  or  in  reaching  conclusions  not  w^arranted 
by  the  facts  found,  the  remedy  of  any  party  prejudiced 
thereby  is  by  motion  for  new  trial,  or  by  some  other 
revisory  or  appellate  proceeding.  Failing  to  resort  to  this 
remedy,  the  order  of  sale  must  be  respected,  and  cannot  be 
destroyed  by  any  collateral  assault.^  Hence,  the  sale  can- 
not be  nullified  by  proof  that  there  w\as  no  necessity  there- 
for, nor  by  any  other  proof  which  involves  a  re-examina- 
tion of  the  issues  necessarily  involved  in  the  order  of  sale.^ 
An  attempted  attack  upon  an  order  of  sale  or  the  sale 
supported  by  it  may  be  either  on  the  ground  that  the  court 
for  some  reason  did  not  have  authority  to  hear  the  petition 
and  make  the  order  thereon,  or  that,  on  hearing  it,  it  was 

1  Myers  v.  Davis,  47  Iowa,  325;  Fleming  v.  Bale,  23  Kan.  88;  McDade 
V.  Burch,  7  Ga.  559,  50  Am,  Dec.  407;  Long  v.  Weller,  29  Gratt.  347; 
Grayon  v.  Weddle,  63  Mo.  523;  Pratt  v.  Houghtating,  45  Mich.  457; 
Weyer  v.  Second  Nat.  Bank,  57  Ind.  198;  Gardner  v.  Mawney,  95  111. 
552;  Merrill  v.  Harris,  26  N.  H.  143,  57  Am.  Dec.  359;  Lebrokev. 
Damon,  89  Me.  113;  Schroeder  v.  Wilcox,  39  Neb.  136;  Ward  v.  Lown- 
des, 96  N.  C.  367;  Turner  v.  Shuffler,  108  N.  C.  642. 

2  Bowen  v.  Bond,  80  111.  351;  Allen  v.  Shepard,  87  111.  314;  Meyers  v. 
Davis,  47  Iowa,  325;  Arrowsmith  v.  Harmoning,  42  Ohio  St.  254;  Davis 
V.  Gaines,  104  U.  S.  386;  Abbott  v.  Curran,  98  N.  Y.  665;  Cromwell  v. 
Hull,  97  N.  Y.  209. 

80 


VOID    .ILDICIAL    SALES.  §    20 

guilty  of  some  irregularity  or  other  error,  or  that  the  sale 
was  directed  when  no  sufficient  cause  existed  therefor. 
The  authority  of  the  court  to  hear  and  determine  the  peti- 
tion is,  as  we  have  shown,  dependent  solely  upon  some 
valid  law  granting  it  jurisdiction  over  the  subject-matter 
and  upon  a  sufficient  petition  and  service  of  the  notice  or 
citation.  Where  the  order  contains  direct  recitals  concern- 
ing what  was  done  in  respect  to  the  service  of  notice  or 
citation,  the  contradiction  of  these  recitals  will  not  be  per- 
mitted on  a  collateral  assault.^  If  the  order  is  conclusive 
of  questions  of  this  character,  there  can  be  no  doubt  of  its 
effect  as  against  objections  of  a  less  serious  nature.  As  to 
mere  irreofularities  it  mav  be  regarded  as  a  sufficient  ad- 
judication,  either  that  the  irregularities  did  not  exist,  or 
that  the  court,  notwithstanding  their  existence,  deemed 
them  immaterial,  and  hence  rightly  proceeded  to  ignore 
them.-  Therefore,  as  against  an  order  of  sale,  the  objection 
cannot  be  entertained  that  the  proof  of  the  insufficiency  of 
the  personal  estate  was  not  made  by  two  disinterested  wit- 
nesses,-^ nor  that  the  person  appointed  and  acting  as  admin- 
istrator did  not  havethe  necessary  qualitications,*  nor  that 
the  decedent  was  not  at  the  time  of  his  death  an  inhabitant 
or  resident  of  the  county  in  which  the  administration  was 
had,'^  nor  that  letters  of  administration  were  issued  too  late,'^ 
nor  that  there  was  no  exhibit  under  oath  showing  the  condi- 
tion of  the  estate  and  what  debts  had  been  allowed,'  nor  that 

1  (;oodwin  V.  Sims,  8G  Ala.  105,  11  Am.  St.  Rep.  21 :  Zillmer  v.  Ger- 
ichten.  Ill  Cal.  7^;  Bradley  v.  Drone,  187  111.  175,  79  Am.  St.  Rep.  214; 
Edwards  v.  Moore,  90  X.  C.  1;  Terry  v.  Blakey,  5  Tex.  Civ.  App. 
331;  Lyne  v.  Sandford,  82  Tex.  58,  27  Am.  St.  Rep.  852;  Berriaui  v. 
Rogers,  43  Fed.  Rep.  407;  Pbillips  v.  Phillips,  13  S.  D.  231. 

2  Moore  v.  Cottingham.  113  Ala.  148,  59  Am.  St.  Rep.  100. 

^  Goodwin  v.  Sims,  8tJ  Ala.  167;  Kent  v.  Mansel,  101  Ala.  334. 

*  Ford  V.  Mills,  4G  La.  Ann.  331. 

*  Tt'iiipleton  V.  Ferguson,  89  Tex.  47. 
«  King  V.  Xunn,  99  Mich.  590. 

'  Lyne  v.  Sandford,  82  Tex.  58,  27  Am.  St.  Rep.  8.")2. 

(6)  81 


§     20  VOID    .lUDIClAL    SALES. 

the  junit  of  the  attidavit  to  the  warning  order  was  not 
sio-ned,^  or  that  the  judge  was  disqualified  to  act,  such  dis- 
qualification not  appearing  by  the  record."^ 

With  respect  to  the  existence  of  a  cause  for  the  sale,  the 
order  must  be  accepted  as  a  direct  adjudication  having  the 
force  of  res  judicata  and  estopping  the  parties  before  the 
court  and  their  successors  in  interest  from  controverting  its 
express  or  implied  findings  for  the  purpose  of  overthrowing 
any  sale  founded  thereon.  The  necessity  for  the  sale  is 
ordinarily  dependent  upon  some  legacy  made  by,  or  debt 
due  from,  the  decedent,  or  some  expense  or  charge  of  ad- 
ministration, and  in  the  case  of  real  property,  on  the  in- 
sufficiency of  the  personal  estate.  The  effect  of  the  order 
cannot  be  avoided  by  proving  that  the  personal  estate  was 
insufficient  to  meet  all  demands,'^  or  that  the  debts  or  other 
charges  for  the  })ayment  of  which  the  sale  was  authorized 
did  not  exist  or  were  not  valid  claims  against  the  estate.^ 
Neither  can  the  order  of  sale  be  avoided  on  the  ground  that 
fraud  is  inferable  from  the  course  and  result  of  the  pro- 
ceedings,^ nor  that  the  court  erred  in  directing  an  unneces- 
sarily large  quantity  of  land  to  be  sold.*^'  At  least,  where 
the  question  Avas  presented  to  the  court  and  actually  de- 
cided by  it,  its  order  cannot  be  assailed  collaterally  on  the 

1  Sears  v.  Sear?,  95  Ky.  173,  44  Am.  St.  Rep.  213. 

2  Killough  V.  Warren  (Tenn.  Ch.  App.),  58  S.  W.  Kep.  898. 

3  Sloan  V.  Sloan,  25  Fla.  53;  Thomson  v.  Blanehard,  2  Lea,  528. 

^  Foxworth  V.  White,  72  Ala.  224;  Cobb  v.  Garner,  105  Ala.  4G7,  53 
Am.  St.  Rep.  136;  McCauley  v.  Harvey,  49  Cal.  497;  Bateman  v.  Reit- 
ler,  19  Colo.  547;  Deans  v.  Wilcoxon,  25  Fla.  180;  Sloan  v.  Sloan,  25 
Fla.  54;  Judd  v.  Ross,  146  111.40;  Munday  v.  Kaufman,  48  La.  Ann.  591; 
Linman  v.  Riggins,  40  La.  Ann.  761,  8  Am.  St.  Rep.  549;  Webb  v. 
Keller,  39  La.  Ann.  55;  Egan  v.  Grece,  79  Mich.  629;  King  v.  Nunn,  99 
Mich.  590;  Curran  v.  Kuby,  37  Minn.  330;  Rogers  v.  Johnson,  126  Mo. 
202;  Maceyv.  Stark,  116  Mo.  481;  Gordon  v.  Gordon,  55  N.H.  399; 
Blanehard  V.  Webster,  62  JST.  H.  467;  Lyne  v.  Sandford,  82  Tex.  58,  27 
Am.  St.  Rep.  852;  Manson  v.  Dincanson,  166  U.  S.  533. 

-'  Shirley  v.  Warfield,  12  Tex.  Civ.  App.  449. 

"  Hodge  V.  Fabian,  31  S.  C.  212,  17  Am.  St.  Rep.  25. 

82 


VOID    JUDICIAL    SALES.  §    20 

ground  that  the  property  had  been,  or  shoukl  have  been, 
withdrawn  from  administration.  The  remedy  of  the  per- 
sons opposing  the  sale  in  such  case  is  by  appeal.^  There 
are  some  cases  which  appear  to  permit  a  re-examination  of 
the  legal  conclusions  drawn  by  the  court  in  ordering  the 
sale.  Thus,  sales  were  held  void  in  one  instance,  because 
ordered  to  raise  funds  to  pay  debts  barred  by  the  statute  of 
limitation,-  and  in  another  because  the  order  did  not  show 
any  necessity  for  the  sale."^  If  these  and  kindred  cases  can 
be  maintained  upon  principle,  it  must  be  on  the  ground 
that  the  petitions  and  orders  were  so  deiicient  in  essential 
elements  that  they  did  not  disclose  any  case  calling  for  judi- 
cial action,  and,  therefore,  left  the  court  without  jurisdic- 
tion, according  to  the  decisions  cited  in  section  eleven. 

The  form  of  the  order  is  different  in  the  different  States. 
In  California,  it  "must  describe  the  lands  to  be  sold  and 
the  terms  of  the  sale."*  In  Massachusetts,  it  need  not 
designate  which  part  of  the  testator's  lands  arc  to  l:e  sold.'' 
In  Texas,  an  order  to  sell  all  the  lands  of  a  decedent  was 
thought  to  be  proper,^  while  a  license  for  the  sale  of  so 
much  as  would  raise  $1,")00  (it  appearing  that  the  decedent 
held  o4:,000  acres)  was  regarded  as  of  very  questionable 
validity."  In  North  Carolina,  an  order  describing  a  lot  and 
directing  it  to  be  sold,  if  in  the  settlement  of  the  estate  it 
should  be  found  necessary,  was  sustained  on  a  collateral  at- 
tack when  questioned  on  the  ground  that  it  was  a  condi- 
tional judgment,  or  an  attempt  to  confer  judicial  power  on 


'  Ions  V.  Ilarbison,  112  Cal.  2liO;  Thomas  v.  Thompson,  149  Ind.  391. 

2  Heath  v.  Wells,  5  Pick.  139,  16  Am.  Dec.  383;  Smith  v.  Wildman, 
178  Pa.  St.  2-ir),  56  Am.  St.  Rep.  760.  Contra:  Cobb  v.  Garver,  105  Ala. 
4';7,  53  Am.  St.  Rep.  136. 

•'  Wyatts  V.  Rambo,  29  Ala.  510,  68  Am.  Dec.  89. 

<C.  C.  P.  of  Cal.,  sec.  1554. 

•'•  Yeomans  v.  JJrown,  8  Met.  51 ;  Norton  v.  Norton,  5  Cush.  524. 

f  Wells  V.  Polk,  36  Tex.  120. 

"  Graham  v.  Hawkins,  38  Tex.  628. 

83 


^     20  VOID    JUDICIAL    SALES. 

an  administrator.^  In  Alabama,  a  license  to  sell  must  desig- 
nate the  place  of  sale.^  The  failure  to  state  in  the  order 
the  time  and  place  of  sale,  even  when  the  statute  directs 
such  statement  to  be  made,  is  probabh^  a  mere  irregularity.-'' 
In  some  of  the  States  the  order  should  set  forth  that  notice 
was  (^ivcn  to  the  persons  interested.^  In  another,  it  must, 
if  for  the  sale  of  real  property,  state,  to  be  valid,  that  the 
personal  estate  has  been  exhausted.''  In  New  Jersey,  it 
should  declare  the  sum  which  the  court  has  adjudged  to  be 
necessary  to  be  raised  by  the  sale.*^'  In  Texas,  the  direction 
of  the  statute  that  the  order  of  sale  contain  a  description  of 
the  property  to  be  sold  was  held  to  be  directory  merely.' 
In  Georgia,  the  order  may  be  to  sell  "all  the  real  estate  of 
the  decedent,"  without  any  further  attempt  at  description.^ 
In  Arkansas,  the  fact  that  the  order  contains  no  descrip- 
tion does  not  render  it  inoperative,  if  it  appears  to  be 
granted  on  a  certain  petition,  and  that  petition  contains  a 
full  and  adequate  description.'*  We  have,  however,  consid- 
ered the  sufficiency  of  descriptions  of  real  property  in  con- 
nection with  petitions  for  licenses  for  its  sale,  and  the  rules 
there  stated  are  equally  applicable  to  orders  of  sale.  Where 
the  description  in  an  order  of  sale  is  perfect,  it  cannot  by 
extrinsic  evidence  be  made  to  apply  to,  and  support,  a  sale 
of  an  entirely  different  parcel  of  land.^"  Where  a  descrip- 
tion is  not  such  as  to  identify  any  parcel  it  cannot  support 
any  sale,^^  but  the  description  in  the  order  may  be   aided 

1  Sledge  V.  Elliott,  116 N.  C.  712. 

-  Brown  v.  Brown,  41  Ala.  215;  Bozeman  v.  Bozeman,  82  Ala.  389. 
"  Spring  V.  Kane,  86  111.  580 ;  Benefield  v.  Albert,  132  111.  665. 
•*  Summersett  V.  Summersett,  40  Ala.   596,  91  Am.  Dec.  494:  Puckett 
V.  McDonald,  6  How.  (Miss.)  269. 
5  Sloan  V.  Sloan,  25  Fla.  53. 
"  Furman  v.  Furman.  45  N.  .T.  Eq.  744. 
'  Robertson  v.  Johnson,  57  Tex.  62. 
^  Doe  V.  Henderson,  4  Ga.  148,  48  Am.  Dec.  216. 
"  Montgomery  v.  Johnson,  31  Ark.  74. 
"  Melton  V.  Fitch,  125  Mo.  281. 
"  Tilton  V.  Pearson,  67  111.  App.  373. 

84 


VOID    JUDICIAL    SALES.  §    20 

by  the  petition  on  which  it  is  founded,  and  the  order  may 
doubtless  adopt  that  description  by  proper  reference  to  it, 
and  thus  avoid  the  necessity  for  its  rej^etition.^  In  Califor- 
nia, it  was  formerly  held  that  "the  order  of  sale  must  be 
in  itself  sufficient,  and  to  make  it  so  the  description  of 
land  to  be  sold  must  be  sufficiently  detinitc  and  certain, 
without  reference  to  any  extraneous  matter."'^  Hence,  it 
was  said  that  the  description  "twenty-one  acres  of  the 
Kanch  La  Golita,  being  the  share  of  a  tract  of  thirty-one 
acres  allotted  to  said  minors  by  a  decree  of  the  district 
court  of  Santa  Barbara  county,  in  a  suit  in  partition 
wherein  the  guardian  herein  and  mother  of  said  minors  was 
plaintiff  and  said  minors  were  defendants,"  is  fatally  de- 
fective. This  very  absurd  ruling  has  been  formally  aban- 
doned in  the  court  wherein  it  was  made,^  and  is  not  likely  to 
be  received  with  favor  elsewhere.  That  must  be  regarded 
as  certain  which  is  capable  of  being  made  so ;  and  this  rule 
is,  upon  principle,  as  applicable  to  a  judgment,  decree  or 
order,  as  to  a  voluntary  conveyance.  Giving  the  number 
of  the  lot  and  block  without  naming  the  village  or  city  is 
insufficient,*  but  land  ma}^  be  described  by  abbreviations  in 
common  use,  as  "Sec.  12,  T.  17,  li.  21,"  if  the  county  is 
named ;^  and  the  mentioning  of  "ninety-one  acres  of  the 
southwest  corner"  of  a  designated  tract,  where  the  dece- 
dent owned  only  that  number  .of  acres  in  such  tract,  was 
held  to  be  sufficient.'' 

'  Crawford  v.  McDonald,  88  Tex.  62G. 

2  Hill  V.  Wall,  G6  Cal.  180;  Crosby  v.  Dowd,  61  Cal.557. 

"  De  Sepulveda  v.  Baugh,  74  Cal.  468,  5  Am.  St.  Rep.  4.55. 

■•  Ilerrick  v.  Aninierinan,  32  Minn.  .544. 

'  Wright  V.  Ware.  ."iO  Ala.  .549;  Money  v.  Turnipseed,  .50  Ala.  499. 

•^  Bloom  V.  Biirdick,  1  Hill,  130,  37  Am.  Dec.  299. 


85 


§    21  VOID    JUDICIAL    SALES. 


ClIAPTEK  III. 


SALES    VOID    BECAUSE  OF    ERRORS    OR    OMISSIONS    OCCURRING 
AFTER    THE    JUDGMENT    OR    ORDER  OF  SALE. 

SECTION. 

21.  General  Kule  llegarding  the  Effect  of  Irregularities. 

22.  Failure  to  Give  Additional  Bond,  or  to  Take   Oath  Concerning 

the  Sale. 

23.  The  Necessity  of  a  Valid  Execution,  or  Order  of  Sale. 
21.    The  Times  when  an  Execution  M  ly  Not  Issue. 

24a.  Loss  or  Suspension  of  the  Right  to  Enforce  an  Execution  Right- 
fully Issued. 
25.     Writs  of  Execution  Must  be  Sufficient  in  Form. 
2(5.     Sales  in  the  Absence  of  Levies. 

27.  Sales  without  Iniiuisition  or  Appraisement. 

28.  Sales  without  Notice. 

29.  Sales,  by  Whom  may  be  Made. 

80.  Sales  Made  at  an  Improper  Time. 

81.  Sales  Made  at  an  Improper  Place. 

32.  Sales  not  at  Public  Auction. 

33.  Sales  to  Persons  Disqualitied  from  Purchasing. 
31.  Sales  to  Raise  More  Money  than  was  Authorized. 
35.  S  lies  of  Property  not  Liable  to  Sale. 

3;i.  S  lie  of  a  Different  or  Less  Interest. 

37.  Sale  of  Unlocated  Part. 

38.  Sales  of  Property  in  Adverse  Possession. 

39.  Sales  en  masse. 

40.  S  lies  Infected  by  Fraudulent  Combinations  and  Devices. 

41 .  Purchaser's  Title  not  Affected  by  Secret  Frauds. 
41a.  Purchaser's  Title.  Secret  Equities  and  Transfers. 

§    21.     General  Rule  Regarding- Irregularities. — When 
a  judgmeut  or  order  of  sale  has  been  pronounced  it  must 

86     . 


VOID    JUDICIAL    SALES.  §     21 

next  be  enforced.  The  authority  which  pronounces  it  is 
judicial.  That  which  enforces  it  is  chiefly  ministerial.  In 
the  exercise  of  this  ministerial  authority,  various  errors  of 
commission  or  omisiou  are  likely  to  occur.  We  shall 
devote  this  chapter  to  a  brief  and,  necessarily,  imperfect 
enumeration  of  those  ministerial  errors,  on  account  of 
which  a  judicial,  execution  or  probate  sale  may  be  adjudo;ed 
void.  With  respect  to  judicial  and  execution  sales,  "the 
general  principle  to  be  deduced  from  the  authorities  is, 
that  the  title  of  a  purchaser,  not  himself  in  fault,  cannot 
be^impaired  at  law  nor  in  equity  by  showing  any  mere  error 
or  irregularity-Ui  the  proceedings.  ^Errors  and  irregulari- 
ties  must  be  corrected  by  a  direct  proceeding.  If  not  so 
corrected  they  cannot  be  made  available  by  way  of  collat- 
eral attack  on  the  purchaser's  title. "^ 

Probate  sales,  we  are  sorry  to  sa}',  are  generally  viewed 
with  extreme  suspicion.  Though  absolutely  essential  to  the 
administration  of  justice,  and  forming  a  portion  of  ahnost 
every  chain  of  title,  they  are  too  often  subjected  to  tests 
far  more  trying  than  those  applied  to  other  judicial  sales. 
Mere  irregularities  of  proceeding  have,  even  after  the  pro- 
ceedings had  been  formally  approved  by  the  court,  often 
resulted  in  the  overthrow  of  the  purchaser's  title.  In  fact, 
in  some  courts,  the  spirit  manifested  toward  probate  sales 
has  been  scarcely  less  hostile  than  that  which  has  nuide  tax 
sales  the  most  precarious  of  all  the  methods  of  acquiring 

'  Freeman  on  Executions,  sec.  339;  Freeman  on  Co-'enancy  and  Par- 
tition, sec,  548;  Winchester  v.  Winchester,  1  Head,  4(!0;  AVhitnian  v. 
Taylor,  60  Mo.  127;  Hedges  v.  Mace,  72  111.  472;  Cooley  v.  Wilson,  42 
Iowa,  428;  DeForest  v.  Farley,  G2  X.  Y.  628;  Byers  v.  Fowler,  12  Ark. 
218,  .54  Am.  Dec.  271:  Sydnor  v.  Roberts,  13  Tex.  598,  65  Am.  Dec.  84; 
Millie  V.  Lombard,  32  Minn.  259,  19  X.  W.  Hep.  187;  Wallace  v.  Loomis, 
97  U.  S.  1-16;  Fit/patrick  v.  Peabody.  51  Vt.  195;  Casey  v.  Gregory,  13 
IJ.  Mon.  505,  .%  Am.  Dec.  581 :  Walkor  v.  McKnight,  15  B.  Mon.  467,  61 
Am.  Dec,  190:  (iibson  V.  Lyon.  115  U.  S.  439;  Beidler  v,  Friedell,  44 
Ark,  411;  Walker  v.  Goldsmith,  14  Or.  125;  Fowler  v.  Poor,  93  X. 
('.  466;  E wards  v.  Ilalbert,  64  Tex,  667, 


§    21  VOID    JUDICIAL    SALES. 

title.  In  other  courts,  however,  probtite  Scales  are  treated 
as  indulgently  as  other  judicial  sales. ^  This  is,  perhaps, 
more  universally  true  of  guardians'  sales  than  of  those 
made  by  executors  or  administrators,  for  the  reason  that 
the  inclination  of  the  courts  is  to  regard  a  sale  made  by  a 
guardian  as  having  been  applied  for  and  made  by  the  ward 
himself  acting  through  his  agent,  selected  by  himself  or  by 
the  court,  and  hence  the  sale  will  be  sustained  as  against 
such  irregularities  as  do  not  involve  any  act  of  bad  faith  or 
of  oppression  on  the  part  of  the  purchaser. ^ 

It  is  sometimes  said  that  a  sale  made  under  a  decree  must 
l)ursue  the  directions  therein  contained,|  .that  a  departurjB 
from  these  cjirections  renders  the  sale  void.^  But  to  invoke 
this  rule  the  departure  must  be  of  a  very  material  character, 
and  must,  Ave  think,  be  a  departure  which  has  not  been 
approved  by  a  decree  of  confirmation  entered  in  the  court 
which  ordered  and  had  supervision  of  the  sale.*  In  truth, 
a  court  is  not  absolutely  bound  by  the  terms  of  its  order  or 
decree  respecting  the  mode  of  a  sale.  Itjpay,  though  the 
sale  is  directed  by  it,  refuse  confirmation  if  it  appears  that 
the  mode  was  one  calculated,  under  the  circumstances,  to 
result  in  a  sacrifice  of  the  property,  that  such  result  has 
been  realized,  and  that  a  new  sale  in  a  different  mode  may 
be  more  equitable.^  If  the  court  has  power  to  direct  the 
terms  of  the  sale  in  the  first  instance  it  may  change  them 
afterwards,  and  if  an  officer  or  other  agent  of  the  law,  or 

1  Harris  v.  Lester,  80  111.307;  Price  v.  W^inter,  ]5  Fla.  606;  Miilford  v. 
Beveridge,  78  111.  455;  Patterson  v.  Lemon,  50  Ga.  231;  Gage  v. 
Schroder,  73  111.  44;  Spring  v.  Kane,  86  111.580;  Goodbody  v.  Goodbody, 
95  111.  456;  Moody  v.  Butler,  63  Tex.  210;  Higgins  v.  Reed,  48  Kan.  272; 
Howbert  v.  Heyle,  47  Kan.  58. 

2  Scarf  V.  Aldrich,  97  Cal.  360,  33  Am.  St.  Rep.  390;  Kendrick  v. 
Wheeler,  85  Tex.  247. 

3  Williamson  v.  Berry,  8  How.  (U.  S.)  544;  .Jarboe  v.  Colvin,  4  Bush, 
70;  Gofer  v.  Miller,  7  Bush,  545. 

*  Welch  V.  Louis,  31  111.  446;  McGavock  v.  Bell,  3  Coldw.  512. 
r^reeman  on  Executions,  sec.  304f ;  Deford  v.  McWatty,  82  Md.  168. 

88 


VOID    JUDICIAL    SALES.  §    22 

of  the  court  in  .makiftg  a  t>al#^-4eparts  from  the  directions 
of  tne"cfecree,/thejx)urt  may,  nevertheless,  by  confirming 
the  sale,  ratify  his  action,  provided/always  that  the  terms 
so  ratified  are  such  as  the  court  had  power  to  impose  in  the 
first  instance.^ 

§  22.  Failure  to  Give  Additional  Bond,  or  to  Take 
Oath  Concerning-  the  Sale. — The  granting  of  a  license  to 
sell  real  estate  im})oses  a  duty  and  also  a  pecuniary  respon- 
sibility on  the  guardian  or  administrator  in  addition  to  the 
duty  and  responsibility  otherwise  attached  to  his  oflice. 
This  duty  is  to  use  his  best  efforts  to  make  an  advantao:eous 
sale  of  the  i)roperty.  This  responsibility  is  to  properly 
account  for  and  pay  over  the  proceeds  of  the  sale.  To  in- 
sure a  greater  fidelity  in  performing  this  duty,  some  statutes 
have  prescribed  an  oath  to  be  taken  before  entering  upon 
any  of  the  proceedings  necessary  to  precede  the  sale.  To 
provide  against  any  misappropriation  of  the  proceeds  of  the 
sale,  the  statutes  very  generally  exact  an  additional  bond 
from  the  guardian,  executor  or  administrator.  The  fact 
that  a  sale  was  made,  or  that  the  time  or  place  thereof  was 
selected  in  advance  of  the  taking  of  this  oath,  has,  in  every 
case  coming  within  our  observation,  been  decided  to  be 
fatal  to  the  purchaser's  title.-  The  same  conclusion  has 
been  reached  in  several  cases  where  sales  were  made  without 
the  grivinff  of  the  additional   bond.-^     So  it  has  been   said 


J  Farmers"  L.  Co.  v.  Oregon  P.  R.  R.  Co.,  28  Or.  44. 

2  Campbell  V.  Knights,  26  Me.  224,  45  Am.  Dec.  107;  Wilkinson  v. 
Filby,  24  Wis.  441 :  Parker  v.  Nichols,  7  Pick.  Ill ;  Blackman  v.  Bau- 
man,  22  Wis.  Gil;  Williams  V.  Reed,  5  Pick.  480;  Cooper  v.  Sunder- 
land, 3  Iowa,  114,  (JO  Am.  Dec.  52;  Thornton  v.  Mulquinne,  12  Iowa, 
549;   Tracy  v.  Roberts,  88  Me.   310.   51   Am.   St.   Rep.   394. 

3  Wiley  V.  White,  3  Stew.  &  P.  355;  Currie  v.  Stewart,  20  Miss.  040; 
JJabcock  V.  Cobb,  11  xMinn.  347;  Loeb  v.  Struck  (Ivy.),  42  S.  W.  Rep.  401 ; 
Rucker  V.  Dyer,  44  Miss.  .591;  Perkins  v.  Fairfield,  11  Mass.  220; 
Coheav.  State,  34  Miss.  178;  Hamilton  v.  Lockhart.  41  Miss.  400;  Wash- 
ington V.  McCaughan,  34  Miss.  394;  Williams  v.  Morton,  38  Me.  47,  01 
Am.  Dec.  229;  Barnett  v.  Bui),  81   Ky.  127;   Williamson  v.  William- 

89 


^    22  VOID    JUDICIAL    SALES. 

when  the  statute  reciuires  the  approval  of  a  bond  by  a  judge 
of  the  court,  that  it  was  not,  in  contemphition  of  law,  any 
bond  at  all  until  such  approval,  and  that  a  sale  upon  it  is 
void.^     In  most  of  the  cases  where  sales  were  held  void  for 

son,  :5  S.  &  M.  715,  41  Am.  Dec.   63(5.    For  application  of  a  similar  rule 
in  partition  suit*,  see  Freeman  on  Co-tenancy  and  Partition,  sec.  4G6. 
1  Bachelor  v.  Korb,  58  Neb.  122,  7G  Am.  St.  Kep.   70.     The  court,   in 
its  decision  in  this  case,  in  announcing  its   conclusion  and   explaining 
another  decision  cited  as  in  opposition  thereto,   said:     "In   this  con- 
nection it  is  said  by  the  defendant  in  error  that  the  failure  of  the  guard- 
ian to  have  the  bond  executed  by  him  approved  by  the  judge  of  the 
district  court  was  an  irregularity  merely.    The  answer  to  this  is,   if   it 
was  an  irregularity  it  was  such  a  one  as  the  statute  in  effect  prescribes 
shall  avoid  the  sale.     Another  contention  of  the  defendant  in  error  is 
that  the  provision  of  the  statute  requiring  this  bond  to  be  approved  by 
the  judge  of  the  district  court  is  directory  merely,  and   that  this  court 
held  iu  Myers  v.  McGavock,  39  Neb.  843,  42  Am.  St.  Rep.  627,  that  such 
a  bond  need  not  be  approved  by  the  judge  of  the  district  court.    The 
requirement  of  the  statute  that  the   district  court  shall  approve  this 
bond  is  not  directory,  but  it  is  mandatory;  and  this  court  did  not  hold 
in  Myers  v.  McGavock,  39  Neb.  843,  42  Am.   St.  Rep.   627,   or  in  any 
other  case,  either  that  the  statute  requiring  this  bond  to  be  given  was 
directory,  or  that,  if  given,  and  not  approved  by  the  judge,   his  failure 
to  approve  it  was  immaterial.  The  Myers-McGavock  case  was  an  action 
in  ejectment  by  heirs.     The  defendants  to  that  action  claimed   under  a 
sale  made  by  a  guardian.    It  was  insisted  that  that  sale  was  void  be- 
cause the  guardian  had  not  given  a  bond  approved  by  the  judge  grant- 
ing the  license  as  required  by  statute.     Answering  this  objection  we 
said  :     'A  bond  in  proper  form  and  with  proper  sureties  was  executed 
and  tiled  in  the  court  in  the  proceeding  as  required  by  the  statute;   but 
the  record  of  the  proceeding  in  which  the  license  to  sell  the  real  estate 
of  the  wards  was  granted  does  not  show  that  this  bond   was  formally 
approved  by  the  judge  who   granted   the   license.     It  is  now  claimed 
that  this  silence  of  the  record  is  conclusive  evidence  that  the  bond  was 
not  approved  by  the  judge,  and  his  failure  to  formally  approve  the  bond 
renders  the  entire  proceeding  void.     On  the  trial  of  the  case  at  bar  the 
defendants  proved   by   the  attorney  who    conducted  the  proceeding 
on  behalf  of  the  guardian  that  the  bond  was,  in  fact,   presented  to  and 
approved  by  the  presiding  judge.   The  fact  of  the  approval  of  the  bond, 
like  any  other  fact,  might  be  proved  by   the  best  evidence  attainable. 
We  are  of  opinion,  however,   that    in    this    colhiteral    proceeding    the 
guardian's  deed  could  not  be  declared  void  because  the  bond  filed  for 
the  purpose  of  obtaining  the  license  to  sell  the  real  estate  was  not  form- 
ally approved.      Emery  V.  Vroman,  19  Wis.   *689,  (724),  88  Am.  Dec. 

DO 


VOID    JUDICIAL    SALES.  §    22 

the  failure  to  take  the  oath  or  to  give  the  bond,  they  had 
been  confirmed  by  the  court.  Upon  principle,  the  failure 
to  file  an  additional  bond  must  be  regarded  as  an  irregu- 
larity merely.  The  only  answer  to  this  contention  is  to 
say,  as  did  the  courts  in  some  of  the  States,  that  the  juris- 
diction of  the  probate  court  is  defined  by  statute,  that  it  has 
no  common-law  jurisdiction  ;  that  its  jurisdiction  is  special 
and  limited,  and  that  it  can  act  only  in  the  mode  directed 
by  statute,  and  hence  it  is  claimed  that,  though  it  expressly 
makes  an  order  excusing  an  executor  or  guardian  from 
giving  a  bond,  yet  if  it  errs  in  so  doing  its  order  must  be 
disregarded  as  absoluteh^  void,  and  can  lend  no  support  to 
a  sale  made  in  reliance  thereon. ^  We  think,  however,  that 
at  least  in  those  States  where  the  jurisdiction  of  the  probate 
court  is  more  ample,  or  where  its  exercise  is  confided  to 
courts  having  general  jurisdiction,  they  cannot  be  regarded 
as  acting  beyond  their  authority,  either  in  expressly  excusing 
the  filing  of  a  bond  or  in  confirming  a  sale  in  the  absence 
of  such  filing,  whether  before  excused  or  not,  and  that  any 

72»j;  Piirsley  V.  Hayes,  22  Iowa,  11,92  Am.  Dec.  350;  Hamiel  v.  Don- 
nelly. 75  Iowa,  93."  This  is  not  a  holding  that  the  approval  of  the 
<(ii;irdian's  bond  by  the  judge  granting  him  the  license  to  sell  is  not  an 
absolutely  essential  thing.  The  statute  does  not  prescribe  what  shall 
constitute  an  approval  of  a  guardian's  bond  to  sell  his  ward's  real  es- 
tate. It  does  not  declare  what  shall  be  the  only  evidence  of  the  judge's 
approval  of  such  bond.  A  formal  approval  of  a  bond  would,  perhaps, 
(••insist  in  the  judge's  writing  on  the  bond  'approved'  or  'this  bond 
approved.' or  some  such  words,  and  signing  his  name.  In  theMyers-Mc- 
fiavock  case  the  bond  was  actually  presented  to  the  judge,  and  the  fact 
that  he  approved  it  was  established  by  oral  evidence — the  best  and  only 
evidence  attainable— and  we  held  that  that  was  sutficient,  and  that  the 
gale  would  not  be  declared  void,  not  because  the  judge  had  not  ap- 
proved the  bond,  but  because  he  had  not  formally  approved  it;  that  is, 
that  the  evidence  that  he  approved  it  did  not  appear  upon  the  bond  in 
writing.  In  the  case  at  bar,  the  bond  was  never  presented  to  the  judge 
who  granted  the  guardian  license  to  sell.  It  was  never  approved  by 
him  in  any  inanner  whatevei-.  He  testified  as  a  witness  that  the  bond 
was  never  pre.-ented  to  him  nor  approved  by  him." 
'  .-^now  V.  Jiussell,  93  Me.  302,  74  Am.  St.  liep.  350. 

91 


§    22  VOID    JUDICIAL    SALES. 

error  or  irrcgularit}'  of  this  kind  should  be  deemed  cured 
by  the  subsequent  contirnnition  of  the  sale.^ 

In  New  York,  the  filing  of  the  original  bond,  on  the 
o-rantintj-  of  letters  of  administration,  is  not  a  jurisdictional 
matter.*'^  The  issue  of  letters  without  it  is  valid.  The 
failure  of  a  master  in  chancery  to  file  his  bond  cannot  be 
raised  in  a  collateral  suit  to  avoid  a  sale  made  by  him  and 
contirmcd  by  the  court. -^ 

In  Indiana,  a  sale  made  without  giving  the  bond  required 
cannot  be  avoided  collaterally  when  made  by  a  guardian,  if 
he  has  duly  accounted  for  the  proceeds.  If,  on  the  other 
hand,  such  proceeds  have  been  lost  to  the  ward,  owing  to 
the  omission  of  the  bond,  he  may  treat  the  sale  as  void.^ 
It  thus  appears  to  be  the  duty  of  the  purchaser  in  that 
State  either  to  assure  himself  that  the  requisite  bond  has 
been  given,  or  else  to  take  measures  looking  to  the  proper 
application  of  the  proceeds  of  the  sale.  In  some  of  the 
States  the  legislature  has,  by  statute,  declared  that  probate 
sales  shall  not  be  avoided  on  account  of  "  any  irregularity 
in  the  proceedings,  provided  it  should  appear:  1,  that  the 
executor  was  licensed  to  make  the  sale  by  the  county  court 
having  jurisdiction;  2,  that  he  gave  a  bond  that  was  ap- 
proved by  the  judge  of  the  county  court,  in  case  a  bond 
was  required,  upon  granting  a  license;  3,  that  he  took  the 
oath  therein  pre^icribed;  4,  that  he  gave  notice  of  the  time 
and  place  of  sale  as  therein  prescribed;  and  5,  that  the 
premises  were  sold  accordingly,  and  the  sale  confirmed  by 
the  court,  and  that  they  were  held  by  one  who  purchased 
them  in  good  faith. "'^     These  statutes,  while  professedly 

1  Higginsv.  Reed,  48  Kan.  272;  Watts  v.  Cook,  21  Kan.  278;  How- 
bert  V.  Herkle,  47  Kan.  58;  Foster  v.  Birch,  14  Ind.  445;  Lockhart  v. 
John,  7  Pa.  St.  137;  Arrowsnaith  v.  Hormoning,  42  Ohio  St.  254; 
Moody  V.  Butler,  63  Tex.  210;  Hamiel  v.  Donnelly,  75  Iowa,  93. 

2  Bloom  V.  Burdick,  1  Hill,  130,  37  Am.  Dec.  299. 
^  NichoU  V.  Nicholl,  8  Paige,  349. 

*  McKeever  v.  Ball,  71  Ind.  398. 
•'  Melms  V.  Pfister,  59  Wis.  194. 

92 


VOID    JUDICIAL    SALES.  §    23 

in  the  interest  of  purchasers  in  good  fuitli  at  probate  sales, 
probably  operate  to  the  contrary,  as  thej  seem  to  recognize 
five  classes  of  irregularity  as  fatal,  when  only  the  first  of 
the  five  was  clearly  and  necessarily  fatal,  independent  of 
such  statute.  In  States  controlled  by  these  or  similar 
statutes,  we  see  no  escape  from  the  conclusion  that  a  sale, 
made  in  the  absence  of  the  bond  required  by  law,  or  the 
order  of  the  court,  is  void.  But,  unless  supported  by  some 
statute,  the  decisions  declaring  that  the  failure  to  give  such 
bond  nullifies  the  sale,  are  not  sustainable  at  all.  The 
jurisdiction  of  the  court  is  in  nowise  connected  with  the 
giving  of  the  bond;  and  the  omission  of  such  bond  is  man- 
ifestly a  simple  irregularity  affording  sufficient  reason  for 
refusing  to  approve  the  sale,  but  of  no  consequence  to  a 
jjurchaser  in  good  faith,  except  in  so  far  as  it  may  lead 
the  court  to  withhold  its  approval  of  his  purchase.'  Even 
in  those  States  where  the  giving  or  api)roval  of  a  bond  is 
re(]uircd,  it  will  ))robably  be  presumed  from  the  confirma- 
tion of  the  sale,  in  the  absence  of  any  other  evidence  upon 
the  subject,  that  siich  bond  was  given  and  a})proved,  though 
it  is  not  found  among  the  files  of  the  court,  or  though  so 
found,  no  approval  is  indorsed  thereon  or  annexed  thereto.'^ 

;j  2.5.  The  Necessity  for  a  Valid  Execution. — Though 
a  judgment  at  law  is  entered,  no  officer  has  any  authority  to 
enforce  it  without  a  writ  of  execution,  /iusule,  whcnjio 
^such  w^rit  had  issued,  would,  uncpiestionably,  be  void.  In 
chancery  the  decree  of  sale  may  of  itself  constitute  a  suf- 
ficient authority  for  its  own  execution.''  The  usual  custom 
in  chancery   is  to  deliver  a   certified  copy  of  the  decree  to 

MVyman  V.  Campbell,  U  Toiter,  ail),  31  Am.  Dec.  «77;  Palmer  v. 
Oakley.  2  Doug.  (Mich.)  4:«,  47  Am.  Dec.  41;  Bunce  v.  Bimce,  69 
Iowa,  .");«;  Watts  V.  Cook,  24  Kan.  278;  Mobbeiiy  v.  .Johnson,  78  Ky. 
273;  McKinney  v.  .Tones,  55  Wis.  39:  Ilamiel   v.  Donnelly,  75  Iowa,  93. 

2  Myers  v.  McGavock,  39  Neb.  843,  42  Am.  St.  Kep.  027;  Saul  v. 
Frame,  3  Tex.  Civ.  App.  .590. 

•"  Karnes  v.  Harper,  48  111.  527.  See  Freeman  on  Executions,  sec.  47a 
(3d  Ed.),  p.  215. 

93 


§    23  VOID    .lUDICIAL    SALES. 

llic  person  cliargocl  by  the  court  or  by  law  with  the  duty  of 
making  the  sale.  Under  the  practice  for  the  foreclosure 
of  mortgages  in  California,  the  sheriff  is  authorized  to  pro- 
ceed on  receiving,  an  execution  /or  a  certitied  copy  of  the 
decree.  If  he  acts  in  the  absence  of  both,  his  acts  arc  void.^ 
Some  of  the  statutes  require  copies  of  orders  of  sale  in  pro- 
bate to  be  delivered  to  the  administrator  or  guardian  as  his 
authority  to  sell,  and  others  contain  no  direct  provision  on 
the  subject.  We  have  never  known  of  a  sale  being  ques- 
tioned on  the  ground  that  no  copy  of  the  license  to  sell  had 
been  delivered  to  the  administrator.  An  execution  is  in- 
valid and  cannot  support  a  sale,  unless  it  is  issued  out  of  a 
court,'^  and  by  an  ofKcer^  competent  to  issue  it.  It  is  not 
sufficient  that  the  court  be  competent  to  issue  execution  in 
some  cases  or  upon  some  judgment.  It  must  be  compe- 
tent to  issue  the  writ  in  question,  and,  except  when 
specially  authorized  by  statute,  one  court  cannot  issiig 
execution  upon  the  judgment  of  another,  and  a  writ  sp 
issued  is  void.*  The  officer  must  also  be  authorized  to  issue 
the  particular  writ  in  question.  It  is  not  sufficient  that  he 
has  power  to  issue  writs  on  other  judgments  or  from  othex 
courts.^  Neither  is  it  sufficient  that  he  was  authorized  to 
issue  the  writ  at  some  particular  time  if  his  authority  has 
terminated,  as  where  he  was  the  clerk  of  the  court,  but  his 
official  term  has  expired,^  except,  perhaps,  where  he  retains 
possession  of  the  office  under  such  circumstances  as  to  con- 
stitute an  officer  de  facto.     The  writ  must  also  be  on  a 

b  Heyman  v.  Babcock,  30  Cal.  367. 

'^  Freeman  on  Executions,  gee.  15.  After  a  court  has  been  estab- 
lished an  execution  purporting  to  be  issued  out  of  it  is  a  nullity.  Har- 
ris v.  Corriell,  80  111,  54. 

3  Freeman  on  Executions,  sec.  23. 

<  Freeman  on  Execution,  sec.  15;  Willamette,  etc.,  Co.  v.  Hendrix,  -28 
Or.  485,  52  Am.  St.  Rep.  800;  Lovelady  v.  Burgess,  32  Or.  418. 

5  Chandler  v.  Calcord,  1  Okla.  260;  Richards  v.  Belcher,  6  Tex.  Civ. 
App.  284. 

«  O'Donnell  v.  Merguire  (Cal.),  60  Pac.  Rep.  981. 

94 


VOID    JUDICIAL    SALES.  §    2.*^ 

Judgment  capable  of  enforcement  by  execution.  It  is  not 
such  a  judgment  unless  it  is  final  and  in  form  sufficient  to 
enable  the  court  to  determine  by  inspection  what  has  been 
awarded, jfrom  whom  the  award  is  to  be  recovered,,  and  to 
whom  it  is  due.^  The  judgment  must  also  warrant  ^he  kind 
^f  writ  issued.  AiuELxecution  in  j^ersonam  cannot  be  issued 
on  a  judgment  in  rem,  and  though  the  judgment  is  in  form 
in  jjersoiiam,  if  it  is  enf()rcibleagahist  particular  property^ 
only,  as  where_  the_jdefendant__is  gut  of  the  jurisdjction  of  L 

the  court  and  his  property  has  been  attached/ but  jurisdic-         "i 
tion  of  his  person  never  obtained,  jiji  execution  in  per.^oncmi 
Jjjiotrjtt^titied,  ajid^JLLissued^-JUUstj  in  its  operation,  be  re- 
-stricleiLlo— th^'lM-operty  attached,  and  a  sale  thereunder  of    \ 
^nj^other  is  necessarily  void.^     A  mere  settlement  of  ac-  -V- 
counts  or  other  liuding  that  a  sum  of  money  is  due,  accom- 
panied by  a  direction  that  it  be  paid  into  court,  is  not,  in 
the  absence  of  a  statute  specially  authorizing  it,  en  forcible 
otherwise  than  by   committing  for    contempt,   and    hence 
does  not  support  an  execution  issued  thereon.-^     Tlie  iudo- 
jnejiLjiuist  not  be   void  nor  satisfied.^     Its  effect  must  not 
have  been  destroyed  hy  its  vacation  or  reversal.-^     The  de- 

/J Freeman  on  Execution,  sec.  16. 

•^Kelley  v.  Kelley,  161  Mass.  Ill,  42  Am.  St.  Rep.  389;  Gue  v.  Jones, 

25  Xeb.  634;  Renier  v.  Ilurlburt,  $\  Wis.  24,  29  Am.  St.  Rep.  850. 

"Freeman  on  Execution,  sec.  17;  Kingsbury  v.  Hutton,  140  lil.  C()3; 
United  States  'J'.  Co.  v.  Stevens,  67  Md,  1.56. 

*  Freeman  on  Executions,  sees.  19  and  20.  That  a  sale  under  a  satis- 
fied judgment  is  void  is  affirmed  in  French  v.  Edwards,  5  Saw.  C.  C. 
26G;  Drefall  v.  Tuttle,  42  Iowa,  77;  Finley  v.  Gant,  8  Baxt.  148;  Wood  v. 
Colvin.  2  Hill,  566,  38  Am.  Dec.  588;  Frost  v.  Yonker's  S.  B.,  70  N.  Y. 
560;  Doe  V.  Ingersoll,  11  S.  &M.  249,  49  Am.  Dec.  57;  Murrell  V.Roberts, 
n  Ired.  424,  53  Am.  Dec.  449.  In  some  States  such  sales  are  upheld  in 
favor  of  innecent  purchasers.  Van  Campen  v.  Snyder,  3  How.  (Miss.) 
66,  32  Am.  Dec.  311 ;  Hoffman  v.  Strohecker,  7  Watts,  86,  32  Am.  Dec. 
740;  Reed  v.  Austin,  9  Mo.  722,  45  Am.  Dec.  336;  Boren  v.  McGeehee, 
6  Port.  432,  31  Am.  Dec.  695.  A  purchaser  buying  at  a  sale  under  a 
satisfied  judgment,  with  notice  of  facts  sufiicient  to  put  him  upon 
inquiry,  unquestionably  gets  no  title.  Kezar  v.  Elkins,  52  Vt.  119; 
Weston  V.  Clark,  37  Mo.  573. 

5  Bullard  v.  McArdle,  98  Cal.  355,  35  Am.  St.  Rep.  176. 

96 


§    24  AOID    JUDICIAL    SALES, 

fendaut  in  exeriition  must  also  be  a  person  or  corporation 
against  which  an  execution  may  issue. ^  Thus  judgments 
are  sometimes  authorized  to  be  entered  against  a  county  or 
a  State  for  the  purpose  of  establishing  its  liability  as  a 
foundation  for  appropriate  proceedings  for  its  enforcement, 
but  execution  cannot  properly  issue  thereon,  and  if  issued 
cannot  be  enforced  by  a  levy  upon  or  sale  of  its  property.'^ 
A  somewhat  similar  consequence  follows  the  entry  of  a 
judoinent  against  an  administrator  or  executor  where  its 
effect  is,  by  law,  merely  to  establish  a  claim  against  the  de- 
cedent, to  be  paid  in  due  course  of  administration/'^  The 
execution  must  not  be  forged,  either  wholly  nor  in  any 
material  part.'' 

§  24.  The  Times  when  Execution  May  Not  Issue. — B}^ 
some  statutes  a  plaintiff's  right  to  execution  does  not  exist 
immediately  after  the  entry  of  the  judgment,  but  remains 
in  abeyance  a  specified  period  of  time.  The  issue  of  execu- 
tion before  the  expiration  of  this  time  is,  in  most  States,  a 
mere  h'regularity,  not  of  sufficient  gravity  to  render  the 
sale  void."  The  same  rule  is  usually  applied  to  writs  issued 
contrary  to  agreement  or  pending  a  stay  of  execution. 
They  Avill  be  vacated  on  motion.  But^if  the  defendant 
takes  no  steps  to  obtain  their  vacation,  oi'-to~-&etr-aside- sales 
made  thereunder,  the  latter  will  be  treated  as  valid. "^     This 

1  Freeman  on  Executions,  sec.  22. 

2  Pekin  v.  McMahon,  154  111.  141,  45  Am.  St.  Kep.  114;  Emery  County 
V.  Brleson,  14  Utah,  328.  00  Am.  St.  Rep.   898. 

3  Freeman  on  Execution,  sec.  22;  Cowles  v.  Hall,  113  N.  C.  359. 

4  Freeman  on  Executions,  sees.  23,  47;  Silvan  v.  Coffee,  20  Tex.  4,  70 
Am.  Dec.  371. 

5  DeLoach  v.  Bobbins,  102  Ala.  288,  48  Am.  St.  Rep.  46;  Walthrop  v. 
Friedman,  90  Ala.  157,  24  Am.  St.  Rep.  775;  Wheeling  P.  Co.  v.  Levi, 
48  La.  An.  777;  Mason,  etc.,  Co.  v.  Killogh  M.  Co.,  45S.  C.ll;  Freeman 
on  Executions,  sec.  25;  Stewart  v.  Stocker,  13  Serg.  &  R.  199.  15  Am. 
Dec.  589.  But  in  Massachusetts  a  premature  writ  is  void.  Penniman 
v.  Cole,  8  Mete.  49G. 

«  Freeman  on  Executions,  sees.  26,  33;  Svviggart  v.  Harber,  4  Scam. 
364,  39  Am.  Dec.  418. 

96 


A'OU)    JUDICIAL    SALES.  §    24 

remark^ is  equal h^  _t rue  of  writs  issued  and  sales  made  in 
disobedience  of  injunctions.^  ;  At  coninion  law  execution 
could  not  regularly  issue  after  a  year  and  a  day  subsequent 
to  the  entry  of  judgment,  without  a  veYivov  by  scire  facias. 
A  writ  issued  in  violation  of  this  rule  is  not  void.^  There 
is  little  dissent  from  this  view  where  a  proceeding  should 
have  been  instituted  to  revive  a  judgment  after  it  had  be- 
come dormant  either  by  scire_ facias  or  by  some  statutory 
proceeding  of  the  same  general  character.^  graceediogg^ 
bv  scirefcicias  are,  however,  obsolete  in  a  majority  of  the 
states.  In  them  statutes  provide  that,  after  the  lapse  of  a 
time  specified,  execution  can  issue  only  by  leave  of  the  couit 
upon  motion  made  therefor.  Still,  as  thejright  to  issue  excu- 
tion  is  not  extinguished,  its  issue  without  the  previous 
order  of  the  court  must  be  deemed  a  mere  irregularity,  and 
will  hence  support  an  execution  sale,  unless  defendant  in 
the  writ  obtains  some  order  vacating  it.^  The  rule  must  be 
otherwise  where  the  right  to  execution  has  terminated, 
and  the  court  out  of  which  it  issues  has  not  been  given  any 
power  to  direct  or  sant^tion  such  issuing.  In  such  a  case  it 
must  be  void,  whether  supported  by  an  order  of  the  court 
or  not.^ 

^At^iiottuuon  law  an  execution  could  not  regularly  issue 
without  revivor  of  the  judgment  by  scire  facias,  after  the 

1  Rikeman  v.  Kohn.  48  Ga.  188;  Bagley  v.  Ward.  37  Cal.  121,  99  Am. 
Dee.  25G. 

'-'  Freeman  on  Executions,  sees.  29,  30;  Riddle  v.  Turner.  52  Tex.  145. 
Contra:  Godbold  v.  Lambert,  8  Rich.  Eq.  155,  70  Am.  Dec.  192;  Hos- 
kins  V.  Helm.  4  Lilt.  309,  14  Am.  Dec.  133. 

■"'  DeLoach  v.  Robbins,  102  Ala.  288,  48  Am.  St.  Rep.  40;  Gardner  v. 
Mobile,  etc..  R.  R.  Co..  102  Ala.  635,  48  Am.  St.  Rep.  84;  Herzberg  v. 
llollis,  119  Ala.  490;  Leonard  V.  Broughton.  120  Ind.  .530,  10  Am.  St. 
Rep.  347;  Gillespie  V.  Switzer,  43  Neb.  772;  Sherrard  v.  Johnston.  193 
Vn.  St.  100,  74  Am.  St.  Rep.  080.  Contra:  Davis  v.  Comer,  108  Ga. 
117,  75  Am.  St.  Rep.  33. 

*  Aultman  &  Taylor  Co.  v.  Syme,  103  X.  Y.  54:  Eddy  v.  Coldwell.  23 
Or.  103.  37  Am.  St.  Rep.  672. 

f^  Ante,  §  7a. 

(7)  97 


§    24  VOID    JUDICIAL    SALES. 

death  of  a  sole  plaintiff  or  of  a  sole  defendant.  In  many 
of  the  United  States,  while  the  proceeding  by  scire  facias 
is  no  longer  necessary,  statutes  have  been  enacted  requir- 
ing, when  a  sole  plaintiff  has  died  after  judgment,  that  his 
administrator  or  executor  disclose  the  fact  of  his  death  to 
the  court  either  by  some  motion,  or  by  filing  a  copy  of  let- 
ters testamentary,  or  of  administration,  or  of  an  order 
making  the  appointment.  The  issue  of  a  writ  without  the 
revivor  of  the  judgment  by  scire  facias,  or  by  motion  or 
other  statutory  proceeding,  where  the  wv'it  of  scire  facias 
is  no  longer  the  proper  remedy,  is  a  more  serious  matter 
than  its  issue  on  a  dormant  judgment.  If  an  execution  is 
issued  and  tested  after  the  death  of  a  sole  plaintiff,  the  au- 
thorities are  very  evenly  divided  upon  the  question  whether 
it  is  void  or  irregular  only.^  But  if  it  issues  and  bears 
feste,  after  the  death  of  a  sole  defendant,  the  authorities 
almost,  but  not  quite  unanimously,  adjudge  it  void.-  But 
the  death  of  one  of  several  plaintiffs  or  defendants  neither 
suspends  nor  destroys  the  right  to  issue  execution. "^ 
Whether  a  writ  tested  before  the  death  of  the  defendant, 
but  actually  issued  afterward,  may  be  levied  on  lands  and  a 
valid  sale  made  thereunder,  cannot  be  regarded  as  finally 
settled.  In  one  case  where  the  (|uestion  was  not  neces- 
sarily involved,  it  was  intimated  on  the  authority  of  Tidd's 
Practice  that,  when  the  right  to  take  lands  in  execution 
was  established,  it  followed  that  they  might  be  taken  under 

1  Freeman  on  Executions,  sec.  35:  Seeley  v.  -Johnson,  61  Kan.  337,  78 
Am.  St.  Rep.  314. 

2  Freeman  on  Executions,  sec.  35;  Clingman  v.  Hophie,  78  111.  152; 
Welch  V.  Rattern,  47  Iowa,  147;  Collier's  Admr.  v.  Widdham,  27  Ala. 
291,  62  Am.  Dec.  767;  Montgomery  v.  Realhafer,  85  Tenn.  668,  4  Am. 
St.  Rep.  780;  Cunningham  v.  Burk,  45  Ark.  267;  Boyle  v.  Maroney,  73 
Iowa,  70,  5  Am.  St.  Rep.  657;  Burge  v.  Brown,  5  Bush,  535,  96  Am. 
Dec.  369;  Blanks  v.  Rector,  24  Ark.  496.  In  other  cases  writs  so  issued 
were  adjudged  to  be  voidable  only,  and  not  void.  Shelton  v.  Hamilton, 
23  Miss.  496,  57  Am.  Dec.  149;  Harrington  v.  O'Reilly,  9  S.  &  M.  216, 
48  Am.  Dec.  704;  Elliott's  Lessee  v.  Knott,  14  Md.  121,  74  Am.  Dec.  519. 

3  Freeman  on  Executions,  sec.  36. 

98 


VOID    .lUDICIAL    SALES.  §     24 

the  same  circumstances  as  personal  property,  and  hence, 
that  if  a  writ  tested  before,  but  issued  after  the  death  of 
the  defendant,  can  be  levied  upon  his  goods  and  chattels ; 
his  hinds  may  also  be  subject  to  an  eJegit  issued  under  like 
circumstances,^  and  under  the  authority  of  this  case  it  was 
decided  that  the  dissolution  of  a  corporation  after  the  teste 
of  an  execution  against  it,  but  before  the  actual  levy  thereof, 
did  not  render  invalid  the  sale  of  its  lands  under  such  writ.^ 
In  New  York,  on  the  other  hand,  it  has  been  insisted  that 
the  permitting  the  issuing  of  a  writ  of  execution  after  the 
death  of  the  defendant,  because  tested  before,  applied  only 
to  wv'its  of  fieri  facias ^  under  which  no  levy  upon  real  prop- 
erty could  be  made  at  the  common  law ;  and  hence,  that 
the  real  property  of  a  deceased  defendant  does  not  come 
within  the  rule  permitting  proceedings  under  writs  issued 
after  his  death  but  tested  before. "^ 

If  an  execution  issues  after  a  judgment  is  pronounced  and 
before  its  entry  by  the  clerk,  the  writ  is  not  void.  If 
necessary  to  maintain  proceedings  taken  under  the  writ,  the 
court  would  doubtless  order  the  entry  of  the  judgment  nunc 
pro  tunc.*  If,  however,  the  writ  issues  in  anticipation  of  a 
judgment  not  yet  ordered  by  the  court,  or  upon  a  judgment 
of  confession  not  yet  perfected  Ity  the  clerk,  a  more  serious 
(juestion  arises.  In  such  a  case  the  writ,  at  the  time  of  its 
issue  and  until  the  judgment  is,  pronounced  or  perfected,  is 
unquestionably  void;  and  it  seems  that  no  validity  can  be 
infused  into  the  writ  by  the  subsequent  rendition  of  tlie 
judgment.'  In  some  of  the  States,  executions  nuiy  be 
issued  by  the  clerk  of  a  superior  court  upon  transcripts  of 

'  Erwin  v.  Dundas,  4  How.  58. 

-  Boyd  V.  llankinson,  .S3  Fed.  Rep.  876. 

"iStymetz  v.  Brooks,  10  Wend.  20();  Wallace  v.  Swinton.  (14  X.  Y. 
188;  Wood  v.  Morehouse,  4.")  N.  Y.  ;U)8. 

MJrabain  v.  Lynn.  4  B.  Mon.  17,  30  Am.  Dee.  4'.t3. 

■'  Hathaway  v.  Howell,  54  X.  Y.  97;  on  second  trial.  C  Thoiiip.  .V  (.'. 
4.")3,  4  Hun.  270. 

nil 


§     '2ia  AOID    JUDK'IAL    SALES. 

judgments  of  justico'^  of  the  peace.  The  substantial  per- 
fornianee  of  the  \arioiis  acts  designated  by  statute,  with 
respect  to  the  transcript  and  the  filing  thereof,' appears  to 
be  essential  to  the  issuing  of  the  writ  and  the  maintenance 
of  titles  founded  upon  it.^  The  issue  of  a  venditioni  ex- 
j)0)ias  when  a  fieri  facias  was  ordered  is  a  null  it}'.  "The 
clerk  has  no  power  to  issue  any  other  writ  than  that  pre- 
scribed in  the  judgment."'* 

§  24a.  A  Loss  or  Suspension  of  the  Right  to  Enforce 
an  Execution  Riglitfully  Issued  ma}'  occur  though  the 
judgment  is  neither  satisfied,  vacated,  reversed,  nor  en- 
joined, and  must  be  conceded  to  remain  in  full  force.  The 
only  question  which  we  shall  here  consider  is  whether  the 
death  of  a  sole  plaintiff  or  of  a  sole  defendant,  after  the 
writ  has  issued,  prevents  further  proceedings  under  it  or  ren- 
ders them  subject  to  attack.  That  the  death  of  asole  plaintiff, 
after  the  issuing  of  a  writ,  did  not  constitute  any  reason 
for  not  proceeding  with  its  execution  must  be  conceded.^ 
As  to  personal  property  the  same  concession  must  be  made, 
for  the  reason  that  "  from  its  iesle  at  the  common  law  and 
from  its  delivery  to  the  officer  under  the  statutes,  where 
the  common-law  fiction  of  relation  to  the  day  of  its  feste 
has  been  abolished,  the  writ  is  deemed  to  be  in  proc- 
ess of  execution ;  and  when  its  execution  is  commenced 
during  the  life  of  the  defendant,  either  in  fact  or  in  con- 
templation of  law,  it  must  proceed."  ^  "  With  respect  to 
the  real  estate  of  the  defendant,  the  rule,  accordino-  to  the 
decided  preponderance  of  the  authorities,  is  the  same  as 
that  applicable   to  his  personal  estate.     An  elegit  upon  the 


'  Bigelow  V.  Booth,  39  Mich.  622;  Wooters  v.  Joseph,  137  111.  113.  31 
Am.  St.  Rep.  355;  Campbell  V.  Smith,  IKi  Ala.  290,  67  Am.  St.  Rep. 
114;  Hobson  v.  McCambridge,  130  111.  367. 

2  Hurst  V.  Liford,  11  Heisk.  622. 

3  Freeman  on  Executions,  sec.  37. 

*  Freeman  on  Executions  (3d  Ed.),  p.  144. 

100 


VOID    JUDICIAL    SALES.  §    25 

teste  in  the  defendant's  lifetime  mc\v,  after  his  death,  be 
extended  on  his  real  estate,  and  the  same  is  true  of  any 
other  writ,  so  tested,  which  may  be  employed  to  make  real 
estate  answerable  for  the  defendant's  debt."^ 

§    2.").   "Wi'its  of  Execution  3Iust  be  Suftieient  in  Form. — 

The  necessity  for  a  writ  of  execution  cannot  be  answered  by 
a  writ  called  b}'  that  name,  but  substantially  defective  in 
form.  It  must  at  least  purport  to  proceed  from  some  com- 
petent authority;  imust  show  Avhat  judgment  it  is  designed 
to  enforce,  and  jmust  direct  the  officer  to  execute  or  satisfy 
The  Tudginent.^  But  tlurc  aic  \  arious  formal  matters  usu- 
TiTlTl^TiTbocIiecl  in  writs  of  execution,  and  in  respect  of  which 
an  error  or  omission  is  not  necessarily  fatal.  It  should 
have  that  part  commonly  known  as  the  style  of  the^  writ, 
but  an  error  or  omission  therein  is  not  fatal,"^  except,  per- 
haps, in  Illinois.^  It  should  be  directed  to  the  proper  officer 
who,  Avhere  the  sheriff  is  discjualiiied,  is  the  coroner,  and  if 
directed  to  the  coroner  or  jailer,  and  executed  by  the  latter 
when  the  former  is  not  disqualified,  a  levy  and  sale  there- 
under are  probably  void.''  Ever}^  w^rit  of  execution  should 
^^ntain  words  commanding  the  officer  to  do  the  acts  required 
to  be  done  by  him  to  accomplish  the  satisfaction  or  other 
eiTForcement  of  the  judgment.  The  effect  of  any  substan- 
tial omi.ssion  is  doubtful.  On  the  one  hand  it  is  insisted, 
and   we    think    with   the    better  reason,    that    the    writ   is 


1  Freeman  on  Executions  (3d  Ed.),  p.  14.5:  Rain  v.  Young.  Gl  Kan.  428, 
78  Am.  St.Kep.  .32.0;  Benners  v.  Khineliart,  107X.  C.  7(35.  22  Am.  St.  Rep. 
909;  Bigelow  V.  Renker,  25  Ohio  St.  542;  Montgomery  v.  Realbafer.  85 
Tenn.  608,  4  Am.  St.  Rep.  780.  Contra:  Stymetz  v.  Brooks,  10  Wend. 
210;  Wood  V.  Morehouse,  45  X.  Y.  373. 

-Freeman  on  Executions,  sees.  39  to  41 ;  Brown  v.  Duncan,  132  111. 
413.  22  Am.  St.  Rep.  .545. 

■*  Freeman  on  Executions,  sec.  39. 

*  Sidvvell  V.  Schumacher.  99  111.  433. 

''  Freeman  on  Execution  (3d  Ed.),  sec.  40;  (Jowdy  v.  Sandus,  88  Ky 
34  ti. 


^     25  \OlV    .irOlClAL     SALES. 

ainendahle,  and  hence  will  support  proceedings  taken  under 
it.'  and  on  the  other  that  it  is  void.^ 

A  mistake  or  omission  in  designating  the  return  day,'^  or 
in  the  attesting  clause,*  are  not  of  sufficient  consequence  to 
defeat  an  execution  sale.  In  some  courts  an  execution, 
without  a  seal  (where  one  is  required)  is  void;  in  others  it 
is  irreoular  merely.^  The  effect  of  an  omission  from  a  writ 
of  the  signature  of  the  officer  issuing  it  is  not  settled.  With 
respect  to  justices  of  the  peace,  the  tendency  of  a  majority 
of  the  courts  is  to  treat  executions  issued  by  them  as  void 
uidess  signed.^  Where  the  writ  is  from  a  court  of  record, 
and  is  otherwise  perfect  in  form,  and  has  the  seal  of  the 
court  impressed  thereon,  there  can  be  no  reasonable  doubt  of 
the  authority  by  which  it  was  issued,  and  the  omission  of 
the  signature  of  the  clerk  issuing  it  seems  to  be  merely  an 
amendable  irregularity,'  and  that  a  defendant  knowing  the 
defect  or  being  chargeable  with  knowledge  of  it,  who  fails 
to  make  some  seasonable  objection,  cannot  at  a  latter  date 
insist  with  success  that  it  is  void  ;^  but  there  is  no  doubt 


1  Gardner  v.  Mobile,  etc.,  R.  R.  Co.,  102  Ala.  625,  48  Am.  St.  Rep.  84; 
Cheese  v.  Plymouth,  20  Vt.  469,  50  Am.  Dec.  52;  Freeman  on  Execu- 
tions (3d  Ed.),  sec.  41. 

2  Place  V.  Riley,  91  N.  Y.  1;  Capps  v.  Leachman,  90  Tex.  499,  59 
Am.  St.  Rep.  830. 

•5  Freeman  on  Executions,  sec.  44;  Brevard  v.  Jones,  50  Ala.  221; 
Youngblood  v.  Cunningham,  38  Ark.  571. 

<  Freeman  on  Executions,  sec.  45;  Douglas  v.  Haberstro,  88  N.  Y. 
611;  Ross  V.  Luther,  4  Cow.  158,  15  Am.  Dec.  341. 

5  Freeman  on  Executions,  sec.  46;  Roseman  v.  Miller,  84  111.  297; 
Taylor  V.  Taylor.  83  X.  C.  116;  Woolford  v.  Dugan,  2  Ark.  131,  35 
Am.  Dec.  52,  and  note;  Corvvith  v.  State  Bank,  11  Wis.  430,  78  Am. 
Dec.  719;  Weaver  v.  Peasley,  163  111.  254,  54  Am.  St.  Rep.  469;  Gordon 
V.  Bodwell,  59  Kan.  51,  68  Am.  St.  Rep.  341.  Contra,  that  the  writ  is 
amendable  and  not  void.  Freeman  on  Executions,  sec.  70;  Hall  v. 
Lackmond,  50  Ark.  113,  7  Am.  St.  Rep.  84. 

« Short  V.  State,  79  Ga.  550;  Wooters  v.  Joseph,  137  111.  113,  31  Am. 
St.  Rep.  355;  Huggins  v.  Ketchum,  4  Dev.  &  B.  414. 

7  Jett  v.  Shinn,  47  Ark.  373;  McCormack  v.  Mason,  1  S.  &  R.  92. 

8  Rawles  v.  Jackson,  104  Ga.  593,  69  Am.  St.  Rep.  185. 

102 


VOID    JUDICIAL    SALES.  §     25 

that  in  some  of  the  States  an  unsigned  writ  is  void.' 
The  jnost  frequent  mistakes  in  the  issue  of  writs  are  made 
in  atteinptiiig  to  describe  judgments.  .Soi.uetimes_the  de- 
scription leaves  uncertain  what  the  judgment  is,'  and  at 
otlier  times  it  describes  the  judgment  as  it  is  not.  An  error 
of  the  former  class  may  leave  uncertain  what  the  officer 
should  do  under  the  writ,  or  for  whose  benetit  he  is  to  do 
it.  A  writ  failing  to  attempt  anv  description  of  the  judg- 
meni,  but  meiil}-  coiimuindiiig  the  officer  to  iiiake  desigmtt«d 
sumsof  money  out  of  the  property  of  persons  named  therein, 
^and  to  make  due  return,  was  held  to  be  absolutely  void,  on 
the  '^iinnid  thal"~^^TF"cr6es  not  show  ~f or  whose  benefit  it 
issued tJ  It/^oes  not  show  ui)i)n  what  judgment  or  decree  it 
]s  bas£d.  hor  out  of  what  court  issued.  An  execution  must 
show  for  and  against  whom  it  issues,  the  amount  or  amounts 
to  be  taken  from  ihc  laltcr  for  the  benetit  of  \hv  former. 
and  should  also  show  the  date  at  which,  and  the  court 
where,  the  judgment  was  rendered.""'-  Where  an  attempt  is 
made  m  a  writ  in  <h  -<  rihing  the  judgment,  it  may  fail^^of 
success,  either  because  of  entirely  omitting  or  incorrecth' 
statingjiecessary  elements  of  description.  The  omission  of 
a  date,  or  of  a  name,  or  of  any  other  element  of  description, 
canjiiitjiender  the  writ  Noid,  if,  from  it  as  a  whole,  includ- 
ing the  indorsements  thereon,  there  can  be  no  reasonable 
doubt  respecting  thcjjudgment  forthe  enforcement  of  which 
it  was  issued.-^  The  name  of  the  plaintiff  or  of  the  defend- 
ant may  be  incorrectly  stated,  or  the  amount  or  the  judgment 
may  vary  from  the  sum  for  which  execution  issued.  These 
mistakes  and  variances  are  amendable.  If  no  amendment 
IS  mTde,  and  no  objection  to  the  form  of  tliewrit  TsliifeF^ 
))osed  l)y  a  motion  to  (juash  or  vacate  it,  it  must  be  treated 

'  Hernandez  v.  Drake.  Si  III.  34;  Dearborn  Ji.  Co.  v.  Chicago.  5,5  111. 
App.  38. 

^  Brown  v.  Duncan.  132  111.  413.  22  Am.  St.  Rep.  545. 

"Smith  V.  Bell.  107  Ga.  s()().  73  Am.  St.  Kcp.  151;  McDonald  v.  Fuller, 
11  S.  D.  3.55,  74  Am.  St.  Hep.  815. 

lo;; 


§    L^(>  VOID    .?in)I("IAL    SALES. 

MS  valid, iimlcss  the_\ariance  is  so  greatJJIiat  itappears^^ 
^  be  issued  upon  the  judgment  which  is  produced  in  its 
support.^  An  execution  not  issued  in  the  name  of  the 
people  of  the  State,  nor  directed  to  the  sheriff,  is  amendable, 
and  a  sale  thereunder  is  valid. "^ 

§  26.  Sales  in  the  Absence  of  I>evies. — When  a  judicial 
sale  is  made  by  virtue  of  an  order  or  license  of  sale,  no  levy 
is  necessary."'^  "In  every  case  in  which  from  the  entry  of  a 
judgment  it  follows  that  specific  real  })roperty  may  be  sold 
for  its  satisfaction,  and  in  which  the  writ  issued  is  either  in 
express  terms  or  in  legal  effect  a  special  execution  authoriz- 
ing the  sale  of  specific  real  property,  either  because  the 
judgment  expressly  directed  such  sale,  or  because,  by  reason 
of  a  pre-existing  attachment,  such  property  has  been  im- 
pressed with  the  lien  for  the  satisfaction  of  the  judgment, 
there  can  be  no  necessity  for  any  purpose  of  any  levy  on 
such  property  under  the  writ  of  execution."*  The  same 
rule  holds  good  with  respect  to  execution  sales  of  real  es- 
tate, where  the  judgment  itself  is  alien  on  the  real  property 
of  the  defendant."'  P<'rsonal  ])roperty  must  he  levied  upon, 
or  in  some  way  subjected  to  the  control  of  the  otiicerj_be- 

^  Freeman  on  Executions,  sees.  42,  43;  Uarlan  v.  Harlan,  14  Lea,  107; 
Haskins  v.  Wallet,  G3  Tex.  213;  Alexander  v.  Miller's  Ex.,  18  Tex.  893. 
70  Am.  Dec.  314;  Wilson  v.  Campbell,  33  Ala.  249,  70  Am.  Dec.  5S(i; 
Hunt  V.  Loucks,  38  Cal.  372,  99  Arn.  Dec.  404;  Hunter  v.  Roach,  95  N. 
C.  106;  DeLoach  v.  Bobbins,  102  Ala.  288,  48  Am.  St.  Rep.  46;  Griffith 
V.  Milwaukee,  etc.,  Co.,  92  Iowa,  634,  .54  Am.  St.  Rep.  513;  Anderson  v. 
Gray,  134  111.  550,  23  Am.  St.  Rep.  696;  Fredlander  v.  Fenton,  180  111. 
312,  72  Am.  St.  Rep.  207;  Stackhouse  v.  Zuntz,  41  La.  Ann.  415;  Holmes 
V.  Jordan,  163  Mass.  137;  Berry  v.  Gates,  175  Mass.  373. 

-  Hibbard  v.  Smith,  50  Cal.  511 ;  Pecotte  v.  Oliver,  2  Idaho,  230.  But 
see  contra,  Jones  v.  Hess  (Tex.  Civ.  App.),  48  S.  W.  Rep.  46. 

•^  Freeman  on  Executions,  sec.  280;  Lenhardt  v.  Jennings,  119  Cal.  192. 

*  Freeman  on  Executions,  sec.  280 ;  Lenhardt  v.  Jennings,  119  Cal.  192 ; 
Southern  C.  L.  Co.  v.  Hotel  Co.,  94  Cal.  217,  28  Am.  St.  Rep.  115;  Mc- 
Fall  V.  Buckeye,  etc.,  Assn.,  121  Cal.  468,  68  Am.  St.  Rep.  47;  Burkett 
v.  Clark,  46  Xeb.  466. 

•^  Farrior  v.  Houston,  100  N.  C.  369,  6  Am.  St.  Rep.  597;  Freeman  on 
Executions,  sec.  280. 

104 


VOID    JUDICIAL    SALES.  §     27 

fore  a  valid  sale  can  be  made  iind(M' exec-ution.'  As  between 
the  parties  the  dct'cudanl  ran  waive  a  It'vv.-  With  respect 
to  real  estate,  upon  which  a  levy  has  neither  been  made  nor 
waived,  the  authorities  are  very  evenly  divided  as  to  the 
validity  of  an  execution  sale,  some  claiming  that  it  is  ir- 
regular merel}',  others  that  it  is  void.-'  Among  the  sales 
made  in  the  absence  of  levies  must  be  included  those  sales 
based  upon  sujjposed  or  attempted  levies  in  which  the  pro- 
ceeding-s  are  so  defective  that  no  lew  has  in  contemi)lation 
of  law  been  made,  or,  if  made,  must,  for  some  reason,  be 
declared  void.  If  a  levy  is  upon  real  property,  and  the 
statutes  of  the  State  have  prescribed  the  manner  in  which 
it  shall  be  made,  in(iuiry  must  be  made  by  persons  intend- 
ing to  i)urchase  at  execution  sales  for  the  purpose  of  deter- 
mining whether  the  acts  disclosed  by  the  officer's  return,  or 
otherwise  known  to  exist,  are  suilicient  to  constitute  a  valid 
levy.  "'So  far  as  the  decisions  have  gone  they  indicate 
that  the  statutes  will  be  rather  strictly  construed,  and  that 
any  substantial  departure  from  their  requirements  is  not 
consistent  with  a  valid  levy."^ 

§    27.   Sales    Without  Inquisition    or  Appraisement. — 

Some  statutes  require  an  inquisition  or  appraisement  of  real 
estate  to  precede  its  sale  under  execution,  and  seek  to  avoid 
the  great  sacrifice  sometimes  attending  compulsory  sales, 
by  forbidding  any  sale  which  does  not  realize  a  certain 
propf)rtion  of  the  appraised  value.  Sales  made  without  any 
ai)praiscment,  or    for  a   less   proportion   of   tlic   :4)praised 

v3  Yomans  v.  Bird,  81  Ga.  340;  Freeman  on  Executions,  sec.  274. 

2  Greer  v.  Wintersmith,  85  Ky.  516,  7  Am.  St.  Rep.  613. 

^  Freeman  on  Executions,  sec.  274;  Frink  v.  Roe,  70  Cal.  296;  Gordon 
V.  Gilfoil,  99  U.  S.  168:  Bledsoe  v.  Willingbam,  62  Ga.  550;  Wood  v. 
Augustine.  61  Mo.  46;  Elliott  v.  Knott,  14  Md.  121.  74  Am.  Dec.  519. 

^  Kreeouian  on  Executions,  see,  280;  Brusie  v.  Gates,  80  Cal.  ^67; 
Rudolph  V.  Saunders,  111  Cal.  235;  Hall  v.  Stevenson,  19  Or.  153,  20 
Am.  St.  Rpp.  803;  Robertson  v.  Hoge,  83  Va.  124. 

105 


^   27  \()in  .n'DiciAL   sales. 

valuo  than   authorized  by  law,   are  usually,    but   uot   uni- 
versally, held  void.^ 

In  niaiiv  of  the  States,  administrators  and  guardians  are 
recjuired  to  have  property  appraised  before  selling  it.     In 
Louisiana,  sales  nuide  in  contravention  of  these  statutes  arc 
thought  to  be  void;^  butwejipprehend  that  they  should  be 
declared  voidable  merely;   and,  if  contirnied  by  the  court, 
as~c nil i-ely  valid. -^     This  is  the  view  finally  adopted  by  the 
Supreme  Court  of  Missouri,  where  the  sale  was  collaterally 
attacked, •*  though  it  had  previously  expressed  the  opinion 
that  such  sales  were  void."     The  statutes  of  this  State  de- 
clare that  no  real  estate  of  any  minors  shall  be  sold  for  less 
than  three-fourths  of  its  appraised  value.     In  an  action  of 
ejectment  the  defendant  resisted  the  recovery  on  the  ground 
that  the  land  sued  for  had  been  sold  by  the  curator  of  the 
plaintiffs  Avhile  they  were  minors  under  an  order  of  the  pro- 
bate court.     It  appeared  that  the  sale  was  for  ten  dollars, 
the    appraised  value  of  the  property  one  hundred  and  fifty 
dollars,  and  that  six  years  after  the  sale  the  same  property 
had  been  sold  by  the  purchaser  for  three  thousand  dollars. 
The  judgment  in  favor  of  the  defendant  was  by  the  supreme 
€ourt  reversed  with  direction   to   enter  judgment  for   the 
plaintiff,  on  the  ground  that  the  probate  court  had  no  juris- 
diction to  approve  the  sale,  that  its  order  of  approval  was 
therefore  coram  non  judice  and  void,  and  that  the  deed,  as 
it  showed  these  facts,  was  void  on  its  face.*^ 

/^HJieeman  on  Executions,  sees.  284,285;  Maple  v.  Nelson,  31  Iowa, 
^2^;  Globe  L.  &  T.  Co.  v.  Wood,  58  Neb.  395;  Brown  v.  Butters,  •10 
Iowa,  544.  A  sale  under  a  forged  waiver  of  inquisition  is  void.  Zuver 
V.  Claris,  104  Pa.  St.  222. 

2  Curley's  Succession,  18  La.  Ann.  278.  But  a  sale  in  probate  to  pay  debts 
is  not  void  in  Louisiana,  because  for  less  than  the  appraisement.  Stoltz's 
Succession,  28  La.  Ann.  175 ;  Hermann  v.  Fontelieu,  29  La.  Ann.  502. 

3  Bell  V.  Green,  38  Ark.  78;  Neligh  v.  Keene,  16  Neb.  407;  Apel  v. 
Kelsey,  47  Ark.  413. 

^  Noland  v.  Barrett.  122  Mo.  181.  43  Am.  St.  Rep.  572. 

5  Strouse  v.  Drennan.  41  Mo.  298. 

6  Carder  v.  Culbertson,  100  Mo.  269,  18  Am.  St.  Rep.  548. 

lOfi 


^010    .irDIC'IAL    SALKS.  §     28 

§  26.  Sales  V<»i<l  for  Want  of  Notice  of  Sale. — 8(»iic 
notice  of  the  time  and  place  of  sale,  and  of  the  |)roi)erty  to 
he  sold,  is  ohviously  essential  to  the  realization  of  its  value. 
This  notice  is  commonly  required  to  be  given  by  the  statutes 
regulating-  judicial,  execution  and  probate  sales.  Whether 
a  compliance  with  this  requirement  is  a  prere(iuisite  to  the 
l)o\ver  to  sell  is  uncertain.  Undoubtedly  a  sale,  without 
tirst  giving  the  proper  notice,  would  not  be  contirmed  if  the 
defect  were  known  to  the  court.  It  would  be  vacated  on 
motion,  while  the  court  had  power  to  annul  it  by  that  kind 
of  in-oceeding.^  In  a  few  of  the  States  two  notices  are  re- 
(|uired  to  given,  one  to  the  defendant  in  execution,  and  the 
other  to  the  public.  In  Massachusetts,  the  statute  direct- 
inir  n(jtice  to  be  given  to  the  defendant  has  been  held  to  be 
mandatory,  and  if  the  notice  is  not  served,  or  is  served  in 
a  manner  other  than  that  prescribed  by  statute,  it  is  void.- 
•'Elsewhere  the  rule  is  different.  The  fadure  to  give  the 
defendant  notice  of  the  levy  of  the  writ,  or  of  the  time  when 
his  property  will  be  offered  for  sale  thereunder,  is  a  mere 
irregularitv  which  he  waives  if  he  does  not  urge  it  in  due 
time,  and  this  urging  must  ordinarily  be  by  some  attempt 
to  prevent  the  sale  before  it  takes  place,  or  to  vacate  it  after- 
wards and  l)i'fore  a  conveyance  to  the  purchaser,"-^  With 
res[)ect  to  notice  to  the  public  commonly  re(|uired  to  pre- 
cede execution  sales,  "a  very  decided  preponderance  of 
authorities  maintains  this  proposition:  That  the  statutes 
re<|uiring  notice  of  the  sale  to  be  given  are  directory  merely, 
and  that  the  failure  to  give  such  notice  cannot  avoid  the 
sale  against  any  purchaser  not  himself  in  fault. ""^ 

'  (ilenn  v.  Wootten,  3  Md.  Ch.  .J14;  Matter  of  McFeely,  2  Kedf.  541; 
llclmer  v.  Kehtn,  14  Neb.  219:  Reynolds  v.  Wilson,  15  111.  394,  60  Am. 

-  Parker  v.  Aljbott.  130  Mass.  25. 

"  Frfieman  on  Executions,  sec.  285;  Cowles  v.  Hardin,  101  X.  C.  338,9 
Am.  St.  Hep.  3fi;  Siiaffer  v.  Bledsoe,  118  N.  C.  27'.t;  Boani  v.  City  of 
I'.iownsville,  91  Tex.  (iS4. 

*  P'reeman  on  Executions,  sec.  28(5 :  Ware  v.  Uradford,  2  Ala.  07(1.  3(5 

107 


^     '2H  VOID    .IIDICIAL    SALKS. 

With  rospeet  to  executors,'  administrators"  and  guard- 
ians" sales,  the  authorities  are  more  evenly  divided.  On 
the  one  hand  thev  maintain  that  the  giving  of  notice  for  the 
time,  and  substantially  in  the  manner  directed  by  statute,  is 
indispensable  to  a  valid  sale.^  On  tiie  other  hand,  they  in- 
sist that  the  existence  of  the  notice  and  its  sufficiency  are 
legitimate  subjects  of  inquiry,  when  the  sale  is  reported  for 
coutirmation,  but  not  afterwards.-' 

There  seems  to  be  more  reason  for  sustaining  probate 
sales  nuule  u})on  insufficient  notice  or  without  any  notice 
whatever,  than  for  sustaining  sales  so  made  upon  execution, 
because  the  hitter  are  not  usually  brought  before  the  court 
for  confirmation,  while  the  former  are  reported  to  and  con- 
sidered by  the  court,  and  are  not  to  be  approved  unless  the 
proceedings  are  fair  and  regular.  To  attack  a  probate  sale 
after  confirmation,  for  the  purpose  of  showing  the  absence 

Am.  Dec.  427;  Brooks  v.  Rooney,  11  Ga.  423,  56  Am.  Dec.  430;  Solomon 
V.  Peters,  37  Ga.  255;  Howard  v.  North,  5  Tex.  290,  51  Am.  Dec.  769; 
Draper  v.  BrysoD,  17  Mo.  71.  57  Am.  Dec.  257;  Minor  v.  Natchez,  4  S.  & 
M.  602,  43  Am.  Dec.  488;  Burton  v.  Spiers,  92  N.  C.  503;  Maddox  v. 
Sullivan,  2  Rich.  Eq.  4,  44  Am.  Dec.  234,  and  note;  Smith  v.  Randall,  6 
Cal.  47,  65  Am.  Dec.  475;  Evans  v.  Robberson,  92  Mo.  192,  1  Am.  St. 
Rep.  701;  Hendrlck  v.  Davis,  27  Ga.  167,  73  Am.  Dec.  726;  Conley  v. 
Redwine,  109  Ga.  640,  77  Am.  St.  Rep.  398;  Moore  v.  Johnson.  12  Tex. 
Civ.  App.  694.  Contra:  Hughes  v.  Watt,  26  Ark.  228;  Lafferty  v.  Conn, 
3  Sneed,  221;  Herrick  v.  Ammerman,  32  Minn.  544;  Prater  v.  Mc- 
Donough,  7  Lea,  670;  Henderson  v.  Hays,  41  N.  J.  Law,  387;  Hinson  v. 
Hinson,  5  Sneed,  322,  73  Am.  Dec.  129;  Russell  v.  Williamson,  67  Ark. 
80.  For  form  and  contents  of  notices  of  sale,  see  the  note  to  Hoffman 
V.  Anthony,  75  Am.  Dec.  704  to  713. 

1  Thomas  v.  Le  Barron,  8  Mete.  363;  Curley's  Succession,  18  La.  Ann. 
728;  Blodgett  v.  Hitt,  29  Wis.  169;  Mountour  v.  Purdy,  11  Minn.  384; 
Gerhon  v.  Bestick,  15  La.  Ann.  697;  Hobart  v.  Upton,  2  Saw.  C.  C.  302; 
Hartley  v.  Croze,  38  Minn.  328;  Tracy  v.  Roberts,  88  Me.  310,  51  Am. 
St.  Rep.  394. 

2  Morrow  v.  Weed,  4  Iowa,  77,  66  Am.  Dec.  122;  Little  v.  Sinnett,  7 
Iowa,  324;  Minor  v.  Selectmen,  4  S.  &  M.  602;  Bland  v.  Muncaster,  24 
Miss.  62,  57  Am.  Dec.  162;  Hanks  v.  Neal,  44  Miss.  212;  McNair  v. 
Hunt,  5  Mo.  301 ;  Cooley  v.  Wilson,  42  Iowa,  428;  Hudgens  v.  Jackson. 
51  Ala.  514 ;  Mofiitt  v.  MoflStt.  69  111.  641 ;  lie  Lehman's  Succession,  41  La. 
Ann.  987;  Thompson  v.  Burge,  60  Kan.  .549,  72  Am.  St.  Rep.  369. 

108 


VOID    .U'DICIAI.    SALES.  §     29 

of,  or  defects  in,  the  notice,  involves  the  re-examination  of 
an  issue  which  has  been  once  heard  and  determined  by  a 
court  of  competent  jurisdiction,  and  the  re-examinalion  of 
which  ought  therefore  to  be  forbidden. 

§  29.  By  Whom  tbe  Sale  May  be  Made. — When  a  sale 
is  to  be  made  under  a  decree  in  chancery,  the  court  may 
itjjpoint  some  one  as  its  agent  or  commissioner  uud  invest 
bj^njvith  poweiHTo  nuike  the  sale . ^     A  court  is  not  devested  "---iiL.^ 

^)f_this  power  by  a.  statute  iiuthoriziug'  an  officer  or  a  par-  '  (* 
ticular  class  of  officers  to  niake  suclTr~sales,2  njor3^..tlie 
privver  of  the  complaint  asking  for  a  sale  by  the  sheriff, 
nor  bv  a  o-eneral  declaration  in  the  constitution  of  the  State 
that  thr  Irui-hiture  shall  i)rovidctor  theelection  orapixiint- 
ment  of  certain  county  officers  (anu)ng  whom  sheriffs  are 
einimerated),  and  prescribe  their  duties^ndjix.theiu.terms 
of  office.-^ 

A  sale  under  execution  must  be  made  by  a  sheriff  or 
constable,  unless  he  is  disqualified  to  act.  He  may,  how- 
ever, as  in  the  perfornnince  of  other  ministerial  duties,  act 
bv  a  duly  authorized  deputy.^  The  officer  must, '><^- out- 
authorixed  to  act  at  thepluce-vvhero  the  sale  is  made.  Hence,  y  - 
an  officer  of  one  county  cannot  sell  real  property  in  another,     L-fi  \j^, 

'  and  although  the  property  In  lu-  -oM  consists  of  one  tract, 

vet,  if  it js  situate  partly  in  two  or  more  count ic>.  an  otHcer 

mav  sell  that  part  onl}-  which  lies  wMthiu  Lhc  county  of  which 

iTeTT'an  officer,  and  a  s;iU'  attempted  to  be  made  by  him, of 

~Taii<l-  oiit-ide  of  liis  county  is  void.-"^    The  officer  must  not 
7e    interested    in  the   sale  nor  otherwise   disqualified   from 

'  Freeman  on  ExeciUions.  sec.  291. 

^  Conis  V.  Bertoiilin.  45  La.  Ann.  KiO;  American,  etc..  Co.  v.  North- 
western, etc..  Co.,  53   Neb.  53S;  Mayer  v.  Wick,  15  Ohio  St.  5J8:  Mc- 
Crady  v.  Jones,  36  S.  C.  13(5:  Connell  v.  Wilhelm.  3ti  W.  Va.  5!KS. 
MclJermot  v.  Barton,  100  Cal.  194. 

'  Ilamer  v.  McKlnley.  etc.,  Co.,  52  Neb.  705;  Freeman  on  Executions, 
sec.  291. 

'  Freeman  on  Execution.s,  sec.  289;  Ared  v.  Montajrue,  2()  Tex.  732.  84 
Am.  Dec.  (>(;3:  Holmes  v.  Taylor,  48Ind.  169. 

109 


^     21)  -VOID    .IIDICIAL     SALKS. 

makiiiu-  it..in(l  if  sm-h  (lis(ni:iliHc;iti()ii  exists,  sales  made  by 
him  are  xnld,  if"  it  appears  from  the  record.^ 

An  M(huiiiistrat()r"s  sale  must  be  made  by  or  under  the 
direction  of  the  administrator.  The  court  cannot  appoint 
some  other  person  to  make  the  sale.^  Nor  can  an  executor 
appoint  some  person  in  his  stead  to  exercise  a  power  of  sale 
contained  in  the  will/^  Whether  a  sale  is  made  by  an  officer 
actini>-  under  an  execution  or  order  of  sale,  or  by  an  ex- 
ecutor, administrator  or  ouardian,  under  a  power  conferred 
by  a  will,  or  by  an  order  of  court,  there  is  no  objection  to 
his  employing- an  auctioneer  to  conduct  the  sale,  provided  it 
takes  place  in  the  presence  of  the  officer  and  under  his 
direction,^  and  it  is  said  that  it  is  not  indispensable  that  a 
guardian  be  present  at  the  sale  of  land  of  his  ward,  that  the 
guardian  may  be  represented  at  such  sale  by  his  attorney, 
and  at  all  events,  that  it  cannot,  after  confirmation,  be  held 
void."'  An  administrator's  or  commissioner's  sale,  at  which 
he  was  not  present,  but  which  is  conducted  by  his  agent,  is 
voidable,  if  not  void.*'  It  seems  to  always  be  essential  that 
the  person  making  a  sale  in  an  official  capacity  be  at  least  an 
officer  cZe/rtc^o,  and  as  such  authorized  to  act  in  the  particular 
case.  ,A^h.eiyifi)r,  eon  stable, .has  no  authoritX-ti)  Jtct  under 
a  writ  directed  to  another  sheriff  cM-_con stable,  and  n,  sole 
made  by  him  is  void.''  So  a  sale  made  by  an  ex-sheriff,  in 
a  case  where  the  sheriff  in  office  ought  to  have  acted, ^  or  by 
the    sheriff   in   office   where  the   ex-sheriff  ought   to    have 

1  Knight  V.  Morrison,  79  Ga.  55,  11  Am.  St.  Rep.  405. 

2  Crouch  V.  Eveleth,  12  Mass.  503;  Swan  v.  Wheeler,  4  Day,  137;  Jar- 
vis  v.  Riissicli,  12  Mo.  63;  Rose  v.  Newman,  26  Tex.  131;  State  v. 
Founts.  89Ind.  313. 

3  Pearson  v.  Jamison,  1  McLean,  197. 

^Xoland  v.  Xoland,  12  Bush,  426;  Blossom  v.  Milwaukee,  etc.,  R.  R. 
Co.,  3  Wall.  196;  Williamson  v.  Berry,  8  How.  (U.  S.)  495. 

*  Meyers  v.  McGavock,  39  Neb.  843,  42  Am.  St.  Rep.  627. 

«  Chambers  v.  Jones,  72  111.  275;  Sebastian  v.  Johnson,  72  111.  282. 

^  Bybee  v.  Ashby,  2  Gilm.  151,  43  Am.  Dec.  47;  Gordon  v.  Camp,  3 
Pa.  St.  349,  45  Am.  Dec.  647. 

**  Bank  of  Tenn.  v.  Beatty,  3  Sneed,  305,  65  Am.  Dec.  58. 

110 


VOID    JUDICIAL    SALES.  §     30 

acted/  is  without  authority  of  law  and  void.  The  division 
of  a  county  after  the  levy  of  an  execution  does  not  devest 
the  sheriff  levying  the  writ  of  power  to  make  the  sale.^  A 
sheriff  is  incompetent  to  execute  a  writ  to  which  he  is  a 
party.  A  sale  made  by  him  under  a  judgment  in  his  favor 
is  a  nullitv.-^  The  ruh-  pronouncing  sales  void  when  con- 
ducted by  ofiicers  having  no  authority  to  make  them,  may 

"opfiiate  iTarshryTn^opie  instances,  but  it^is^justified  on  the 
o-round  that  the  officer  is  known  not  to  be  acting  for  him- 
self^but  as  an  agent,  and  that  it  is  always  the  duty  of  a 
person,  dealing  with  one  who^ssumes  to  act  as  an  agent,  to 
ascertain,  ai  liis  peril,  the  existence  of  the  latter's  authority. 

""^"§^0.  At  What  Time  a  Sale  May  be  Made. — Of  course, 
no  judicial  or  execution  sale  ought  to  take  place  at  any  other 
time  than  that  tixed  by  the  notice  of  sale;  and  the  notice  of 
sale  ought  not  to  tix  upon  any  time  prohibited  by  law.  A 
sale  made  in  violation  of  this  rule  will,  no  doubt,  be  vacated 
or  refused  confirmation  if  the  irregularity  is  suggested  to 
the  court  at  the  proper  time.  It  is  not,  however,  void  in 
most  States.*  A  distinction  may  i)roperly  be  made  between 
a  sale  not  made  on  the  day  sjiecitied  in  the  notice,  or  made 
at  an  improper  hour  of  such  day,  and  a  sale  made  on  a  day 
on  which,  under  the  law,  no  sale  can  i)roperly  be  made.  In 
the  latter  class  of  cases,  as  all  persons  must  take  notice  of  the 
law,  both  the  original  purchaser  and  all  persons  deraigning 
title  from  him  are  presumed  to  kiiow  that  the  sale  occurred 
without  the  authority  of  law.  Such  sales  have  generally  been 
adjudged  void,''  unless  reported  to  and  contirmed  by  the  court.'' 

1  Purl  V.  Duvall,  5  H.  &  J.  69,  9  Am.  Dec.  490. 

-  Lofland  v.  Ewing.  5  Litt.  42,  15  Am.  Dec.  41. 

■'  Collais  V.  McLeod.  8  lied.  221.  49  Am.  Dec.  370;  Bowen  v.  Jones.  13 
lied.  25. 

'  Freeman  on  Executions,  sec.  287. 

'•  .Mayers  v.  Carter.  87  N.  C.  140;  State  v.  Rives,  5  Ired.  297;  Howard 
V.  Xortli.  5  Tex.  290,  51  Am.  Dec.  709;  Jeters  v.  Catoii.  6  Tex.  5.5(i; 
Tippett  V.  Mize,  30  Tex.  365,  94  Am.  Dec.  313;  Lowdermilk  v.  Corpen- 
inf(.  101  X.  C.  649. 

'■•  Brown  v.  Christie,  27  Tex.  75,  84  Am.  Dec.  007. 

Ill 


§    30  VOID    JUDICIAL    SALES. 

In  New  York,  ;i  sale  after  sunset  was  held  void.^  This 
is  because  a  statute  of  that  State  fixes  the  hours  between 
which  execution  sales  may  be  made,  and  thereb}'  prohibits 
them  after  sunset.  In  the  absence  of  a  statute  upon  the 
subject,  it  is  evident  that,  as  the  object  is  to  give  publicity 
to  execution  sales  and  thereby  invite  bidding  and  prevent 
the  sacrifice  of  property,  the  officer  should  select  such  an 
hour  of  the  day  as  will  be  likely  to  encourage  competition 
and  realize  the  best  price,  and  the  selection  of  a  late  hour 
at  night  nui}',  in  connection  with  other  circumstances,  in- 
duce the  court  to  declare  the  sale  unfair,  and,  in  extreme 
instances,  void.-^  In  Illinois,  a  sale  at  four  o'clock  in  the 
morning  was  adjudged  to  be  voidable  onh',  and  to  be  capa- 
ble of  becoming  unobjectionable  through  the  defendant's 
acquiescence.''  This  rule  certainly  ought  to  be  recognized 
and  enforced  in  all  sales  made  at  an  improper  time.*  If  an 
agreement  is  made  to  the  effect  that  a  sale  shall  not  take 
place  at  the  time  fixed  in  the  notice  thereof,  but  the  officer, 
in  ignorance  of  the  agreement,  proceeds  with  the  sale,  it 
must  be  deemed  valid  in  favor  of  a  purchaser  without 
notice.^  In  Connecticut,  a  statute  provided  that  execution 
sales  of  personal  property  should  be  made  at  the  end  of 
twenty-one  days  after  the  notice  of  the  sale  was  posted.  A 
sale  one  day  later  was  adjudged  void  on  the  ground  that 
the  statute  clearly  prohibited  a  sale  at  that  time,  and  that 
the  officer's  authority  had  absolutely  terminated,  and  all 
intending  purchasers  were  chargeable  with  notice  of  such 
termination.^  It  is  always  essential  that  a  sale  be  made 
under   a   valid,    subsisting  authoritv.     A  sale  made  when 

^  Carnick  v.  Myers.  14  Barb.  9. 

2  MclSTanghton  v.  McLean,  73  Mich.  2.50. 

3  Rigney  v.  Small,  60  111.  146. 

*  Jackson  v.  Spink,  .50  III.  404;  Botsford  v.  O'Conner,  57  111.  72;  Doe 
V.  Woodson.  1  Hayw.  24. 
^  Knox  V.  Yow,  91  Ga.  367. 
"  Morey  v.  Hoyt,  65  Conn.  516. 

112 


VOID    JUDICIAL    SALES.  §    30 

such  authority  had  been  destroyed  by  hipse  of  time  would 
everywhere  be  treated  as  void.  If  the  statute,  under  which 
u  license  to  sell  is  granted,  limits  the  operation  of  the 
license  within  a  desisfnated  period,  a  sale  outside  of  the 
prescribed  limit  is  a  nullit3\^  In  some  instances  licenses  to 
sell  have  been  held  to  have  lost  their  vitality  through  lapse 
of  time,  although  the  statute  had  not  directly  prescribed 
:;iny  such  limit  to  their  power. ^  If  the  act  under  which  an  order 
of  sale  has  been  granted  is  repealed,  or  the  court  in  which 
it  was  entered  is  abolished,  its  legal  vitality  is  destroyed, 
and  it  cannot  support  a  subsequent  sale.-^  An  execution 
cannot  be  legally  levied  after  the  return  day  thereof,  and 
if  a  levy  is  attempted  after  such  return  day  and  is  followed 
l)y  a  sale,  both  the  levy  and  sale  are  void.*  But  by  the 
■common  law,  the  levy  of  an  execution  creates  a  special 
property  in  the  sheriff,  and  by  virtue  of  such  property  he 
may  proceed  to  sell  after  the  return  day  of  the  writ,  as 
well  as  before.  This  is  unquestionably  true  with  respect  to 
personal  property.  A  levy  on  real  estate,  however,  creates 
no  special  property  therein,  and  great  contrariety  of  opin- 
ion has  developed  concerning  the  power  of  officers  to  make 
sales  thereof  after  the  return  day  of  writs  on  levies  made 
before  such  time.  The  weight  of  the  authorities  favors 
the  validity  of  such   sales. ^ 

1  Macy  V.  Raymond,  9  Pick.  285;  Marr  v.  Boothby,  19  Me.  150:  Mason 
V.  Ham,  3G  Me.  573;  Williamson  v.  Williamson,  52  Miss.  725. 

-  W^ellman  v.  Lawrence,  15  Mass.  32G.  In  this  case  ttie  sale  was  made 
fifteen  years  subsequent  to  the  license. 

■^  McLaughlin  V.  Janney,  G  Gratt.  009;  Perry  v.  Clarkson,  10  Ohio, 
571 :  Bank  v.  Dudley,  2  Pet.  493. 

*  Jefferson  v.  Curry,  71  Mo.  !S5;  Logsdon  v.  Spevey.  54  111.  104. 

''  Freeman  on  Executions,  sec.  100;  Blair  v.  Compton,  33  Mich.  414; 
AVyant  v.  Tuthill,  17  Neb.  495;  Johnson  v.  Bemis,  7  Xeb.  224;  Kane  v. 
McCown,  .55  Mo.  181 ;  Phillips  v.  Dana,  3  Scam.  551 ;  Pettingill  v.  Moss, 
v{  Minn.  222,  74  Am.  Dec.  747;  note  to  Young  v.  Smith.  70  Am.  Dec.  81; 
Stein  V.  Chambless,  IH  Iowa,  474,  87  Am.  Dec.  411 ;  Childs  v.  McChes- 
ney,  20  Iowa,  431,  89  Am.  Dec.  545;  Rose  v.  Ingram,  98  Ind.  270; 
Southern  C.  L.  Co.  v.  Ocean  B.  H.  Co.,  94  Cal.  217,  28  Am.  St.  Rep. 

(H)  113 


§    oO  VOID    JUDICIAL    SALES. 

Where  a  writ  was  levied  during  the  existence  of  a  judg- 
ment lien,  it  was  held  neither  to  continue  the  lien  nor  to 
create  a  new  and  independent  lien.  Where  these  circum- 
stances exist,  therefore,  it  must  follow  that  the  sale  can 
derive  no  support  from  the  levy,  and  that  if  the  execution 
is  returned  and  a  like  Avrit  afterwards  issues,  and  a  sale  is^ 
made  thereunder,  it  must  depend  wholl}^  on  the  second  writ 
and  the  proceedings  taken  for  its  enforcement,  and  must  ))C 
subordinate  to  transfers  made  by,  and  liens  acquired  against, 
the  judgment  debtor  before  the  levy  of  the  later  writ.^ 

A  sale  may  be  attacked  on  the  ground  that  it  was  made 
when  the  otiicer,  instead  of  making  it,  should  have  directed 
an  adjournment  to  another  time,  or,  on  the  reverse  ground, 
that  it  was  made  at  the  time  originally  appointed  for  it,  but 
that  the  officer  either  made  an  unauthorized  adjournment 
or  did  not  give  sufficient  or  any  notice  of  the  time  to  which 
the  adjournment  was  made.  We  feel  confident  that  asale  will 
never  be  declared  absolutely  void  ])ecause  the  officer  failed 
to  adjourn  it  from  the  time  first  appointed,  nor,  on  the  other 
hand,  because  he  did  adjourn  it  from  that  time  to  another. 
Though  no  one  is  present  except  the  plaintiff  and  his  attor- 
ney, the  officer  making  the  sale  need  not  direct  an  ad- 
journment, and  a  sale  made  under  such  circumstances  and 
Avhen  there  can  be  no  other  bidder  than  the  plaintiff,  is  not, 
for  that  reason,  void.'^  Respecting  the  notice  to  be  given 
of  an  adjourned  sale,  the  decisions  are  conflicting,  some  of 
them  maintaining  that  it  is  sufficient  if  the  officer  publich^ 
announces  at  the  time   and  place  first  fixed  for  the  sale  that 

]15;  Bradley  v.  Sandilands,  66  Minn.  40,  61  Am.  St.  Rep.  386.  Contra: 
Sheppard  v.  Rhea,  49  Ala.  12.5;  Paine  v.  Hoskins,  3  Lea,  284;  Smith  v. 
Mundy,  18  Ala.  182,  52  Am.  Dec.  221;  Rogers  v.  Cawood,  1  Swan,  143, 
.55  Am.  Dec.  739;  Mitchell  v.  Ireland,  54  Tex.  301 ;  Williamson  v.  Wil- 
liamson, 52  Miss.  725. 

1  Bagley  v.  Ward,  37  Cal.  121,  99  Am.  Dec.  256;  Sanders  v.  Russell.  86 
Cal.  121,  21  Am.  St.  Rep.  28;  Rogers  v.  Druffel,  46  Cal.  654. 

2  Gilbert  V.  Watts-De  Golyer  Co.,  169  111.  129,  61  Am.  St.  Rep.  154; 
Power  V.  Larabee,  3  X.  D.  502,  44  Am.  St.  Rep.  4M.  ifj7^ 

lU 


VOID    JUDICIAL    SALES.  §    ol 

it  is  adjourned  to  a  time  and  place  then  named  by  him,  and 
others  that  a  new  notice  must  be  given  for  the  time  and  in 
the  manner  required  in  the  first  instance.^ 

§  ol.  Sales  Made  at  an  Improper  Place  are  sometimes 
held  to  be  irregular  merely,  but  more  frequently  are  ad- 
judged void.^  If,  however,  a  statute  declares  that  the  sale 
shall  be  at  the  door  of  the  court  house,  or  at  such  other 
place  as  the  court  may  direct,  and  an  officer  makes  a  sale 
at  a  place  other  than  the  court  house,  and  without  the 
previous  direction  of  the  court,  such  sale  cannot,  after  it  is 
ronfirmed,  be  held  void,  because  the  approval  by  the  court 
is  equivalent  to  its  previous  authorization  to  make  the  saie 
at  the  place  selected  by  the  officer.^  Execution  sales  of 
real  estate  must  be  made  in  the  county  where  it  is  situate, 
and  by  an  officer  of  such  county;*  but  a  commissioner  in 
chancery  may  be  authorized  to  sell  real  estate  beyond  the 
limits  of  the  county  in  which  he  was  appointed.^  Personal 
property,  capable  of  being  examined  and  inspected,  must, 
if  possible,  be  at  or  near  the  place  of  sale.  Bidders  must 
be  permitted  to  view  it,  and,  by  the  exercise  of  their  various 
senses,  to  judge  of  its  character  and  value.  An}^  other 
rule  would  tend  to  a  wanton  sacrifice  of  the  property. 
Hence,  a  sale  of  personal  property  at  a  place  where  it  can- 
not be  examined  nor  seen,  is  a  nullity.*' 

1  Freeman  on  Executions,  sec.  288. 

-Freeman  on  Executions,  sec.  289;  ^Murphy  v.  11111,77  Ind.  129; 
Paulsen  V.  Hall,  3!)  Kan.  :^G.J;  Hall  v.  Hay,  40  Vt.  576,  94  Am.  Dec. 
440;  Moody  v.  Moeller,  72  Tex.  635,  13  Am  St.  Kep.  839. 

■  Thompson  v.  Burge,  60  Kan.  549,  72  Am.  St.  Rep.  369. 

^Freeman  on  Executions,  sec.  289;  Morrell  v.  Ingle,  23  Kan.  32: 
Menges  v.  Oyster,  4  W.  &  S.  20,  39  Am.  Dec.  56;  Thacker  v.  Devol,  50 
ind.  30;  Uanby  v.  Tucker,  23  Ga.  132,  68  Am.  Dec.  514. 

'  Bank  v.  Trapier,  2  Hill  Ch.  25. 
Freeman  on  Executions,  sec.  290;  Collins  v.  Montgomery,  2  X.  li' 
McC.  39;  Kennedy  v.  Clayton,  29  Ark.  270.  Contra,  where  valid  levy 
has  been  made,  Eads  v.  Stephens,  63  Mo.  90.  And  in  Alabama,  an  ex- 
ecution sale  of  goods  not  present  thereat  is  voidable  only.  Foster  v. 
Mabe,  4  .\la.  402,  37  Am.  Dec.  7J9. 

llfj 


§     32  VOID    JUDICIAL    SALES. 

§  32.  Sales  Not  at  Public  Auction. — Execution  sales 
must  be  made  at  public  auction.  Probate  and  other  judicial 
sales  are  generally  controlled,  in  this  respect,  by  the  direc- 
tions contained  in  the  license  or  decree.  Whenever,  by  law 
or  by  direction  in  an  order  of  sale,  property  is  required  to 
be  sold  at  public  auction,  a  priv^ate  sale  thereof  is  invalid.^ 
There  are  cases  which  seem  to  sustain  the  view  that  an 
execution  sale  cannot  be  made  unless  there  are  bidders  or 
by-standers  present  other  than  the  officers  conducting  the 
sale  and  the  parties  to  the  suit;  and  that  a  sale  made  to  the 
judgment  creditor,  when  there  is  no  one  present  but  himself 
and  the  sheriff,  is  a  nullit}^^  The  decision  was  placed  upon 
the  ground  that  the  presumption  of  collusion  between  the 
purchaser  and  officer  was  "irresistible  and  conclusive." 
If  there  were  an}'  circumstances  tending  to  show  that  no 
sufficient  notice  of  the  sale  was  given,  or  that  anything  was 
done  to  prevent  intending  purchasers  from  attending  the 
sale,  then,  in  the  event  of  plaintiff's  purchasing,  and  espe- 
cially if  the  purchase  was  for  a  decidedly  inadequate  sum, 
there  mioht  be  sufficient  reason,  in  the  interest  of  sound 
public  policy,  for  presuming  a  collusion  and  permitting  this 
presumed  collusion  to  vitiate  the  sale.  But  we  know  of  no 
means  by  which  the- plaintiff  in  execution,  or  the  officer  con- 
ducting the  sale,  can  compel  the  attendance  either  of  by- 
standers or  of  competing  bidders,  and  are,  therefore,  unable 
to  concur  in  the  opinion  that  a  sale  in  their  absence  is  irre- 
sistible or  conclusive  evidence  of  collusion,  or  is  any  ade- 
(juate  ground  for  pronouncing  such  sale  void,-^  though  we 

'  Hutchison  v.  Cassidy,  46  Mo.  431;  Ellet  v.  Paxson,  2  W.  &  S.  41S; 
Fambro  v.  Gantt,  12  Ala.  298;  Wier  v.  Davis,  4  Ala.  442;  McArthur  v. 
Carrie,  32  Ala.  275;  Gaines  v.  De  La  Croix,  6  Wall.  719;  Neal  v.  Pat- 
terson, 40  Ga.  363;  Ashurst  v.  Ashurst,  15  Ala.  781;  Worten  v.  Howard, 
2  y.  &  M.  527.  Contra:  Wynns  v.  Alexander,  2  D.  &  B.  Eq.  58;  Tynell 
V.  Morris,  1  D.  &  B.  Eq.  559. 

^  Rieketts  v.  Ungangst,  15  Pa.  St.  90,  53  Am.  Dec.  572 ;  Michael  v. 
McDermott,  17  Pa.  St.  353,  55  Am.  Dec.  560. 

■  Gilbert  V.  Watts-DeGolyer  Co.,  169  111.  129,  61  Am.  St.  Rep.  154; 
Power  V.  Larabee,  3  N.  D.  502,  44  Am.  St.  Rep.  577. 

116 


VOID    JUDICIAL    SALES.  §    3.'i 

concede  that,  in  the  event  of  a  gross  inadequacy,  in  the 
sum  bid,  or  of  any  suspicious  circumstance  whatever,  the 
fact  that  the  sale  took  phice  without  the  presence  of  bidders 
or  by-standers  might  well  justify  a  court  it  setting  it  aside. 

It  has  been  held  that  the  bid  must  be  made  at  the  time  of 
the  sale;  that  if  the  otKcer,  receiving  an  offer  of  a  desig- 
nated sum  before  the  sale,  at  the  sale  accepts  and  cries  such 
offer  and  makes  a  sale  in  pursuance  of  such  offer,  that  the 
sale  is  void.^  This  decision  is  best  justified  on  the  ground 
that  the  bid  in  question,  being  made  and  accepted  in  the 
absence  of  the  bidder,  could  only  be  made  through  the  in- 
strumentality of  the  ofticer  acting  on  behalf  of  the  bidder; 
and  that  the  law  does  not  })ermit  the  officer  to  act  as  the 
agent  of  the  purchaser. 

§  ;33.  Sales  to  Persons  Incompetent  to  Purchase  or 
Disqualified  from  Purcbasing. — AVe  doubt  whether  any 
person,  natural  or  artiticial,  is  incompetent  to  purchase  in 
the  sense  that  an  execution  or  judicial  sale  to  him  can  [)rop- 
crly  be  characterized  as  void.  It  has,  we  admit,  been  held 
in  a  series  of  decisions  in  one  State  that  a  county  having 
power  to  purchase  and  hold  for  public  use,  lands  within  its 
own  limits,  was  without  power  to  acquire  real  property, 
except  for  such  use,  and  that  its  purchase  of  lands  at  an 
execution  sale,  though  under  a  judgment  in  its  favor,  was 
absolutely  void,  and  a  conveya'ncc  executed  by  the  proper 
officer  incapable  of  vesting  it  with  any  title. ^  In  our  judg- 
ment the  power  of  a  corporati(m  to  purchase  property  al  an 
execution  or  judicial  sale  cannot  l)e  inciuired  into  collaterally, 
and  hence  its  purchase  cannot  be  void.  A  natural  person  may 
not  have  capacity  to  contract,  as  where  he  or  she  is  subject 
to  the  disability  of  minority  or  insanity,  or,  being  a  woman. 
is  by  the  law  of  the  State  incompetent  to  contract  because  of 
coverture.     These  disabilities,  however,  are  for  the  protec- 

'  Sparling  v.  Todd,  27  Ohio  St.  521. 

•^  Williams  v.  Lash. S  Minn.  400;  Shelley  v.  Lash.  14  Minn.  -lOS:  .James 
V.  Wilder.  2.1  Minn.  30."). 

117 


§    oS  VOID    JUDICIAL    SALES. 

lion  of  the  persons  subject  thereto,  and  cannot  be  urged  bv 
others  for  the  puri)0sc  of  avoiding  contracts  or  withholding 
rights.  Therefore,  if  a  person  under  an}^  of  these  disabilities 
should  purchase  at  a  judicial  or  execution  sale,  pay  the  pur- 
chase })rice  and  receive  a  conveyance,  it  Avould  vest  title  in 
him  orher  to  the  same  extent  as  if  no  disability  existed.^  If 
one  person  assumes  to  be  the  agent  of  another,  and  in  that 
capacity  to  make  a  bid  for  the  latter,  pay  the  purchase 
price,  and  receive  a  conveyance,  he  whose  lands  are  sold 
cannot  question  the  authority  of  such  agent,  and  thereby 
destro}^  the  effect  of  the  sale  or  conveyance. ^ 

The  policy  of  the  law  is  not  to  permit  the  same  person  to 
represent  conflicting  interests.  Hence,  trustees,  sheriffs, 
constables,  administrators,  executors,  guardians,  and  all 
persons  vested  with  authority  to  sell  the  property  of  others, 
lire'  themselves  forbidden  from  becoming  interested  in  the 
sale.  A  sale  made  in  violation  of  this  rule  will  alwa3^s  be 
vacated  upon  a  motion  made  in  due  time.-^  Whether  a 
party  to  a  suit  or  action  is  disqualified  from  purchasing  de- 
pends upon  whether  he  is,  in  contemplation  of  law,  in 
charge  of  the  sale,  and  hence  in  effect  acting  as  trustee  or 
agent,  or  is  under  obligation  to  discharge  the  whole  liability 
for  the  satisfaction  of  which  the  sale  is  made.  By  the 
English  chancery  practice  the  conduct  of  the  sale  was 
usually  given  to  the  plaintiff,  and  neither  he  nor  any  of  the 
parties  to  the  suit  was  at  liberty  to  bid,  unless  leave  to  do 
so  was  granted  by  the  court.  Where,  however,  the  conduct 
of  the  sale  is  not  in  charge  of  the  plaintiff,  but  is  by  law  or 
the  decree  or  order  of  the  court  committed  to  some  other 
person,  there  is  no  disqualification  on  the  part  of  the  plaint- 
iff to  purchase.  A  purchase  by  the  defendant  of  his  own 
in'operty,  followed  by  a  conveyance  to  him,  can  amount  to 
no  more  than  the  voluntary  payment  by  him  of  the  obliga- 

1  Freeman  on  Executions,  sec.  292. 
-  Deans  v.  Wilcoxon,  25  Fla.  980. 
•"  Freeman  on  Executions,  sec.  292. 

118 


XOIV    JUDICIAL    SALES.  §    33 

tion  which  his  bid  went  to  discharge.  If  he  is  one  of  two 
-orniore  defen(hints,  he  may  purchase  the  property  of  either 
of  the  others,  except  when  the  obligation  which  is  being 
■enforced  is  one  which  it  is  his  sole  duty  to  discharge,  and 
■even  then,  except  when  this  duty  is  disclosed  by  the  record, 
the  purchase  is  probably  not  void  in  the  extreme  sense,  but 
only  subject  to  be  avoided  in  equity.  If  an  execution  is 
-against  co-tenants  for  their  joint  debt,  a  purchase  of  the 
property  of  the  co-tenancy  b}^  one  of  them  must  be  held  by 
him  subject  to  the  duty  of  reconveying  their  shares  to  his 
•co-tenants  upon  their  repaying  him  their  shares  of  the 
money  necessarily  expended  in  the  purchase.  Either  of 
several  judgment  debtors  may  purchase  at  an  execution  sale 
the  property  of  his  co-defendants.  By  such  sale  he  ac- 
quires the  title  to  their  property,  and  they  become  vested 
with  a  cause  of  action  against  him  to  recover  his  share  of 
the  debt.  If  one  of  the  judgment  debtors  is,  as  between  him- 
self and  another,  a  suret}^  only,  he  may  purchase  the  lands 
•of  his  principal  under  an  execution  issued  upon  the  judg- 
ment, and  his  title  will  be  in  all  respects  as  valid  and  as  free 
fronik other  claims  and  incumbrances  as  if  the  purchase  had 
been  by  one  not  a  party  to  the  action. ^  The  onl}^  question 
strictly  within  the  scope  of  our|)resent  inquiry  is  the  effect 
of  a  sale  to  a  person  disqualified  from  purchasing  when  no 
action  is  taken,  for  the  purpose  of  setting  it  aside.  If  the 
sale  and  conveyance  are  made  directl}'  to  the  administrator, 
sheriff  or  other  officer,  they  may  well  be  declared  nullities, 
on  the  ground  that  one  person  cannot  unite  in  himself  the 
K-apacitv  of  vendor  and  vendee — cannot,  by  the  same  act, 
transmit  and  receive.^  So,  although  the  person  purchasing, 
and  to  whom  a  conveyance  is  made  does  not  assume,  and  is 
not   rcfjuired  to  assume,  to  act  ])oth  as  vendor  and  vendee, 

'  P'leeman  on  Executions,  sec.  292. 

-Hiimblin  v.  Warnecke,  31  Tex.  04;  Boyd  v.  lUanknian.  2'.)  Cal.  34, 
55tapp  V.  Toler,  3  Bibb,  450;  D wight  v.  Bhicknr.ir,  2  Mich.  330.  ~u  Am. 
Dee.  130. 

119 


§    33  VOID    JUDICIAL    SALES. 

yet  if  his  purchiise  is  in  violation  of  an  express  statutory 
prohibition,  and  this  fact  is  apparent  from  an  inspection  of 
the  conveyance  and  proceedings,  such  conveyance  may  well 
be  adjudoed  void.^      Two  or  more  administrators  or  ex- 
ecutors of  the  same  decedent  are,  in  law,  treated  as   one- 
person.     Hence,  even   where  the  statute  permits  such  an 
officer  to  purchase  the  property  of  the  estate  which  he  rep- 
resents, one  of  them  cannot  convey  to  the  other. ^     But 
usually  laws  are  sought  to   be  evaded  rather  than   openly- 
violated.     Hence,  an  administrator  or  sheriff,  desirous  of 
becoming  the  owner  of  property  about  to  be  sold  by  himself, 
will   seek  the  aid  of  a  friend,  in  whose   name  the  purchase 
can  be  made  and  the  title  held,  for  such  time  as  Avill  conceal 
the  true  nature  of  the  transaction.     In  a  case  of  this  kind, 
the  officer  cannot  be  permitted  to  profit  by  the  transaction 
at  the  expense  and  against  the  Avill  of  the  parties  interested. 
On  learning  the  true  state  of  the  facts  they  may  have  the 
sale  annulled,  or  they  may  affirm  it  and  permit  it  to  stand. 
If  they  seek  to   annul  it,  they   are  entitled  to  succeed,  ir- 
respective of  the  fairness  or  unfairness  of  the  sale,  or  the 
motives  which  prompted  the   administrator  or  other  officer 
or  trustee. 3     But  the  sale  is  not  void  in  the  extreme  sense. 
It  cannot  be  attacked  and  overthrown    by  third   persons. 
Neither  can  the  heirs  or  other  parties  in  interest  treat  it  as 
unqualifiedly  void.     They  may  confirm  it  either  directly,  or 
by  their  non-action  continued  for  a  long  period  of  time, 

1  Aronstein  v.  Irvine,  49  La.  Ann.  147S;    O'Donoghue  v.  Boies.  92 
Hun,  3. 

2  Green  v.  Holt,  76  Mo.  677. 

3  Riddle  v.  Roll,  24  Ohio  St.  572;  Anderson  v.  Green,  46  Ga.  361: 
Potter  V.  Smith,  36  Ind.  231;  Smith  v.  Drake,  23  X.  J.  Eq.  392;  Fron- 
berger  v.  Lewis,  70  X.  C.  456;  Ryden  v.  Jones,  1  Hawks.  497,  9  Am. 
Dec.  660;  Miles  v.  Wheeler,  43  111.  123;  Downing  v.  Lyford,  57  Vt.  507; 
Ives  V.  Ashley,  97  Mass.  198;  Bailey  v.  Robinson,  1  Gratt.  4,  42  Am. 
Dec.  540;  Edmunds  v.  Crenshaw,  1  McCord's  Ch.  2.52;  Glass  v.  Great- 
house.  20  Ohio,  503;  Guerrero  v.  Ballerino,  48  Cal.  118;  Scott  v.  Free- 
land,  7  S.  &  M.  409,  45  Am.  Dec.  310;  Green  v.  Sargeant.  23  Vt.  466,  .^Hl- 
Am.  Dec.  88. 

120 


VOID    JUDICIAL    SALES.  §    oS 

jifter  having  notice  of  the  true  nature  of  the  transaction. 
Such,  at  least,  is  the  opinion  of  the  majority  of  the  author- 
ities.^ In  some  of  the  cases,  however,  such  a  sale  appears 
to  have  been  held  void.^  In  New  York,  it  is  made  void  by 
statute.^  If  an  administrator  with  the  will  annexed  obtains 
an  order  of  sale  and  makes  sale  of  lands  in  accordance 
therewith,  procures  its  confirmation,  and  executes  a  deed  to 
be  delivered  to  the  purchaser  upon  his  complying  with  the 
terms  of  the  sale,  and,  before  any  of  the  purchase  money  is 
paid,  takes  a  deed  to  himself  from  the  purchaser  upon  the 
consideration  of  the  hitter's  obligation  to  pay  the  sum  bid, 
the  lands  must  be  regarded  as  still  unadministered  upon, 
and  an  action  may  be  maintained  to  compel  such  adminis- 
trator to  proceed  to  sell  such  hmds  as  if  no  sale  bad  been 
made.^  Sales  made  by  sheriffs  and  constables,  in  which 
they  are  interested,  are,  under  the  statutes  in  force  in  many 
of  the  States,  held  void.^ 

1  Litchfield  v.  Cudvvorth,  15  Pick.  23;  Miinn  v.  Burges,  70  111.  G04; 
Boyd  V.  Blankman,  29  Cal.  19;  Hicks  v.  Weens,  14  La.  Ann.  629;  Mus- 
selman  v.  Eshelman,  10  Pa.  St.  394,  51  Am.  Dec.  493.  See  also  the 
authorities  in  the  preceding  citation,  and  White  v.  Iselin,  26  Minn.  487; 
Fuller  V.  Little,  59  Ga.  338;  Murphy  v.  Teter.  56  Ind.  .545;  Temples  v. 
Cain,  60  Miss.  478;  Davidson  v.  Davidson,  28  La.  Ann.  269;  Flanders  v. 
Flanders,  23  Ga.  249,  68  Am.  Dec.  523;  Remick  v.  Butterfield,  31  X.  H. 
70,  64  Am.  Dec.  316;  Bland  v.  Muncaster,  24  Miss.  62,  57  Am.  Dec.  162; 
Burch  v.  Lantz,  2  Rawle,  392,  21  Am.  Dec.  458;  Gibson  v.  Herriott,  .5.> 
Ark.  85,  29  Am.  St.  Rep.  17;  Burris  v.  Kennedy,  108  Cal.  331;  Rudolph 
V.  Underwood,  88  Ga.  664;  Houston  v.  Bryan,  7S  Ga.  181,  6  Am.  St. 
Rep.  2.52;  Comegys  v.  Emerick,  134  Ind.  148,  39  Am.  St.  Rep.  245;  Otis 
V.  Kennedy,  107  Mich.  312;  Anderson  v.  Butler,  31  S.  C.  183;  Mehns  v. 
Pabst  B.  Co.,  93  Wis.  1.53,  57  Am.  St.  Rep.  899. 

2  Hamblin  v.  Warnecke,  31  Tex.  94;  Morgan  v.  Wattles,  69  Ind.  260; 
Howell  v.  Tyler,  91  N.  C.  207;  Scott  v.  Gordon's  Ex.,  14  La.  115,  33  Am. 
Dec.  578;  Wipff  v.  Herder,  6  Tex.  Civ.  App.  685. 

'*  Terwilliger  v.  Brown,  44  X.  Y.  237. 

*  Caldwell  v.  Caldwell,  45  Ohio  St.  512. 

5  Freeman  on  Executions,  sec.  292;  VVoodl)ury  v.  Parker,  19  Vt.  3.53' 
47  Am.  Dec.  695;  Chandlery.  Moulton,  33  Vt.247;  Harrison  v.  McHenry, 
9  Ga.  164,  52  Am.  Dec.  435.  Perhaps,  by  the  concurrence,  both  of 
plaintiff  and  defendant,  a  constable's  sale  to  himself  may  be  ratified  and 
become  valid.     Farnum  v.  Perry,  43  Vt.  473. 

121 


§    OO  \01D    .JUDICIAL    SALES. 

A  sale  to  nn  administrator  or  guardian,  where  he  is  not 
the  otticer  conducting  the  side,  as  where  it  is  made  under  an 
execution  against  his  ward  or  intestate,  while  perhaps  not 
so  objectionable  as  a  sale  nuide  in  his  official  capacity,  is, 
nevertheless,  treated  with  no  greater  indulgence.  The  title 
acquired  thereat  would  doubtless  be  treated  as  held  in  trust 
for  the  benefit  of  the  ward  or  heirs,  and  they  could  compel 
a  conveyance  to  them  on  reimbursing  the  guardian  or  ad- 
ministrator for  the  money  necessarily  expended  in  the 
[)urchase.  The  sale  by  an  administrator,  executor,  or 
guardian  to  a  member  of  his  own  family  may  be  subject  to 
just  suspicion,  but  there  is  no  absolute  disqualification  on 
the  part  of  any  member  of  the  family  from  purchasing. 
Hence,  a  sale  made  by  two  executors  to  the  wife  of  one  of 
them,  where  no  fraud  or  collusion  is  alleged,  cannot  be 
avoided  on  the  ground  that  the  husband  and  wife  are,  in 
legal  contemplation,  one  person,  and  therefore  that  she 
cannot  become  a  purchaser  at  a  sale  -made  by  her  husband, 
nor  on  the  ground  that  when  she  takes  title  under  such  pur- 
chase he  acquires  an  interest  in  the  property,  if,  by  the 
laws  of  the  State,  the  wife  has  a  distinct  and  individual 
existence  relating  to  her  right  to  contract  for  and  purchase 
real  estate,  and  take  title  in  her  own  name,  and  hold,  use, 
and  enjoy  it.^ 

In  Arkansas,  the  attorney  who  prepares  the  petition  for 
and  obtains  an  order  of  sale,  and  the  judge  who  grants  such 
order,  are  incompetent  to  become  purchasers  at  the  sale.^ 
If  the  judge  is  one  whose  duty  it  is  to  determine,  upon  the 
report  of  the  sale,  whether  it  shall  be  confirmed,  we  cannot 
question  the  propriety  of  disqualifying  him  from  bidding 
and  adjudging  a  conveyance  to  him  void  if  based  upon  his 
order  of  confirmation ;"  but  in  the  case  of  execution  sales 
requiring  no   order  of   confirmation,   the   judge   who  pro- 

1  Crawford  v.  Gray,  131  lad.  .53. 

2  West  V.  Waddell,  33  Ark.  575;  Livingston   v.  Cochran,  33  Arli.  2!)4. 

3  Hoskinson  v.  Jacquess,  54  111.  App.  59. 

122 


VOID    JUDICIAL    SALES.  §    33 

iiounced  the  judgment,  or  the  justice  of  the  peace  who 
issued  the  execution,  is  not  incompetent  to  purchase,  and  a 
sale  to  him  is  not  void.^  lender  ordinary  circumstances  it 
is  doubtful  whether  an  attorney  of  a  guardian  or  adminis- 
trator is,  In-  public  i)olicy,  forbidden  from  becoming  a 
purchaser  at  a  sale  madebj-  such  guardian  or  administrator. - 
An  attorney  having  charge  of  the  sale  of  real  estate  under 
t'xecution  cannot  purchase  the  land  for  his  own  benefit,  to 
the  prejudice  of  his  clients,  or  either  of  them.  He  cannot 
insist  upon  his  purchase  unless  he  paid  an  amount  sufficient 
to  satisfy  his  client's  judgment.-^  As  the  relation  of  client 
and  attorney  is  necessarily  a  confidential  one,  the  latter  will 
not  be  permitted  to  maintain  an  attitude  of  hostilitv  to  the 
interests  of  the  fcu'mcr,  and.  hence,  if  he  makes  anv  pur- 
chase in  his  own  name,  or  for  his  own  interest,  his  client 
will  certainly  be  permitted  to  treat  the  attorney  as  having 
acted  as  his  trustee,  and  hence  the  attorney  is  not  at  liberty 
to  enforce  any  ad\  antage  apparently  gained  by  the  pur- 
<-hase.  If  the  attorney  for  the  plaintiff  purchases  the 
property  at  a  sum  sufficient  to  satisfy  the  judgment,  this 
act  can  by  no  legal  possibility  prejudice  the  plaintiff,  and 
tile  attorney  may  hold  the  })urchase  for  his  own  benefit.  If 
the  attorney  for  the  defendant  makes  a  purchase,  there  is 
no  doubt  that  he  may  enforce  it  as  against  all  persons  except 
his  client,  and,  hence,  in  a  State  where  an  execution  or 
judicial  sale  has  the  effect  of  cutting  off  all  other  incum- 
brances, this  effect  cannot  be  denied  to  a  sale  because  it  was 
made  to  an  attorney  for  the  judgment  debtor.*  A  sale  may 
be  vacated,  when,  being  in  partition,  it  was  made  to  the 
attorney  of  all  the])artics,  because  it  is  against  i)ubiic  policy 
to   permit   him,  w  liilc  lia\  ing   control  of  the   sale  and  the 

'  Smith  V.  Perkins,  81  Tex.  152,  2(J  Am.  St.  Kep.  7!U. 
2  Grayson  v.  Weddle.  o:^  Mo.  52S;  Leconte  v.  Irwin,  10  S.  C.  5.)-4. 
■' Jones  V.  Martin.  2(;  Tex.  .57;   Leisenring  v.  Black,  5  Watts,  303,  30 
Am.  Dec.  322;  Hnrke  v.  Daly,  14  Mo.  App.  542. 
^  Saunders  v.  Gould,  124  I'a.  St.  237. 

123 


§    34  VOID    JUDICIAL     SALES. 

other  proceedings,  to  assume  a  position  which  may  induce 
him  to  sacritice  the  interests  of  his  client.^  Where  a  sale 
is  made  to  an  attorney,  and  is  not  vacated,  we  assume  that 
it  is  incumbent  on  the  client,  wishing  the  advantage  of  the 
sale,  to  elect,  within  a  reasonable  time,  to  bear  the  burden 
of  the  sale,  and  of  discharging  it  by  recompensing  the  at- 
torney by  repaying  the  amount  of  the  bid  and  any  other 
necessary  expenditures .'-^ 

§  34.  Sales  to  Raise  too  Great  a  Sum. — In  Kentucky, 
an  execution  or  chancefy  sale  to  raise  a  sum  greater  than 
that  authorized  by  the  judgment  or  decree  is  void,^  A 
like  rule  seems  to  apply  to  probate  sales  in  a  few  of  the 
States.^  How  this  rule  can  with  any  propriety  be  enforced 
against  probate  or  chancery  sales  we  are  unable  to  imagine 
or  understand.  These  sales  take  place  under  the  authority 
of  courts  exercising  jurisdiction  over  the  owners  of  the 
property  sold,  and  are  reported  to  and  confirmed  by  such 
courts,  and  when  so  confirmed  the  parties  in  interest  then 
properly  before  the  court  are  conckided  by  the  order  of 
confirmation.  This  is  conceded  in  Kentucky,  with  respect 
to  all  sales  reported  and  confirmed  by  the  court. ^  And  we 
think  that  even  in  the  case  of  execution  sales,  which  the 
court  is  not  required  to  confirm,  that  the  sale  of  more  prop- 
erty than  was  required  to  satisfy  the  judgment  is  a  mere 
irregularity,  for  which  the  sale  may  be  vacated;  but  that 
until  vacated  by  some  appropriate  proceeding  it  is  valid." 

'  Burke  v.  Daly,  14  Mo.  App.  542. 

2  Baler  v.  Davenport  N.  B.,  77  Iowa,  (515. 

•"  Patterson  v.  Carneal,  3  A.  K.  Marsh.  618,  13  Am.  Dec.  208:  Blakely 
V.  Abert,  1  Dana,  185;  Hastings  v.  Johnson,  1  Xev.  613. 

^Litchfield  v.  Cudworth,  15  Pick.  23;  Lockwood  v.  Sturtevant.  6 
Conn.  373;  Adams  v.  Morrison,  4  N.  H.  1G6,  17  Am.  Dec.  406;  Wake- 
field V.  Campbell,  20  Me.  393,  37  Am.  Dec.  60. 

5  Dawson  v.  Litsey,  10  Bush,  408. 

«  Groff  V.  Jones,  6  Wend.  522,  22  Am.  Dec.  545;  Tiernan  v.  Wilson.  6 
Johns.  Ch.  411 ;  Aldrich  v.  Wilcox,  10  R.  I.  405;  Osgood  v.  Blackmore, 
59  111.  261;  Weaver  v.  Guyer,  59  Ind.  195;  Gibson  v.  Lyon,  115  U.  S.  439. 

124 


VOID    JUDICIAL    SALES.  §    o5 

§   35.      Sales  of  Property  Not  Subject  to  Sale. — It  is 

nhvays  indispensable  that  the  property  sold  be  subject  to 
the  license,  decree  or  writ  under  which  the  sale  is  made. 
If  it  is  a  writ  of  execution,  a  distinction  should  be  kept  in 
mind  between  property  not  subject  to  the  Avrit  under  any 
I'ircumstances,  and  property  which,  though  generally  sub- 
ject, may  be  under  some  circumstances  exempt.  Independ- 
ently of  the  exemption  laws,  certain  classes  of  property  are 
not  subject  to  execution  because  of  the  use  made  of  it,  or 
the  peculiar  interest  of  the  defendant  therein,  or  of  some 
policy  declared  by  the  legislature,  as,  for  instance,  fran- 
<liises,^  public  cemeteries,^  property  owned  by  the  State, '' 
property  dedicated  for  public  uses,  as  for  streets,  public 
squares,  hospitals,  and  the  like,*  copyhold  estates  and  other 
tenancies  at  will,^  estates  of  mortgagees  who  hold  the  legal 
title,''  rights  to  enter  for  condition  broken,'  or  of  a  minor 
to  disaffirm  a  conveyance,*^  the  interests  of  a  douress  before 
the  assignment  of  dower,''  options  to  purchase  real  prop- 
i-rtyji'^the  naked  legal  title,  the  defendant  having  no  bene- 
ficial interest  therein, ^Hhe  rights  of  pre-emption  claimants 

'  Freeman  on  Executions,  sec.  179. 

-  Brown  v.  Lutheran  Church,  23  Pa.  fSt.  500;  Arbuckle  v.  Cowtan,  3 
Bos.  &  P.  327. 

3  Carter  v.  State,  42  La.  Ann.  927,  21  Am.  St.  Rep.  404. 

*  Freeman  on  Executions,  see.  172;  Oakland  v.  Oakland  W.  F.  Co., 
lis  Cal.  160;  Flora  v.  Naney,  120  111.  "45;  Xew  Orleans  v.  Louisiana  C. 
Co..  140  U.  S.  054. 

5  Freeman  on  Executions,  sec.  177. 

•^  Freeman  on  Executions,  sec. 1184. 

'  Edmondson  v.  Leach,  .50  Ga.  401;  Bangor  v.  Warren,  34  Me.  324,  5(5 
Am.  Dec.  657. 

■*  Kendall  v.  Lawrence,  22  Pick.  540. 

'•'  Freeman  on  Executions,  sec.  185. 

i«Chadbourne  v.  Stockton  S.  &  L.  Soc.  (Cal.),  30  Pac.  Kep.  127; 
Smith  V.  Dobbins,  87  Ca.  300. 

"  Freeman  on  Executions,  sec.  173;  Morrison  v.  Harrington,  120  Mo. 
1105;  Wright  v.  Franklin  Bank,  59  Ohio  St.  80;  Crenshaw  v.  Julian,  29 
S.  C.  283,  4  Am.  St.  Rep.  719.  Contra:  Smith  v.  Lookabill,  71  N.  C. 
S."):  Giles  v.  Palmer,  4  Jones,  386,  69  Am.  Dec.  756;  Colyer  v.  Capital 
City  Bank,  103  Tenn.  723. 

125 


§    3")  VOID    JUDICIAL    SALKS.       • 

in  the  lands  of  tlie  rnitod  States, ^  or  of  persons  ae<juiiing- 
homesteads  in  the  lands  of  the  United  States  when  the 
writ  is  based  npon  a  debt  ereated  before  the  issnino-  of  the 
patent.-  In  cases  of  the  character  spoken  of,  and  in  all 
others  where  the  property,  strictly  speaking-,  is  not  subject 
to  execution,  it  is  not  necessary  for  the  defendant  to  make 
any  claim  during  the  course  of  the  proceedings  taken  for 
the  sale  of  his  property,  for,  whether  he  make  such  claim 
or  not,  the  sale  is  absolutely  void,  and  the  purchaser  may 
be  successfully  resisted  in  any  action  which  he  may  bring- 
for  the  i)urpose  of  recovering  possession  or  of  enforcing- 
any  other  claim  which  he  may  choose  to  make."  If  the 
property,  though  generally  subject  to  execution,  is  exempt 
in  the  particular  case  in  Avhich  a  writ  is  levied  upon  it,  a 
sale  thereunder  is  not  necessarily  void,  for  the  defendant 
may  either  waive  or  forfeit  his  right  of  exemption.^  In  the 
absence  of  such  waiver  or  forfeiture,  the  sale  of  exempt 
property  is  void,  and  it  may  hence  be  recovered  from  the 
purchaser.''  This  rule  is  eciually  applicable  to  a  sale  of  a 
homestead  under  execution,'^  but  it  is  not  ordinarily  true 
that  the  right  of  exemption  of  a  homestead,  so  as  to  expose 

1  Freeman  on  Executions,  sec.  17(j;  Rupert  v.  Jones,  119  Cal.  Ill : 
McMillion  v.  Leonard.  19  Colo.  98. 

-  Freeman  on  Executions,  sees.  17G,  250:  Bernard  v.  Boiler,  10.5  Cal. 
214;  Faull  v.  Cooke,  19  Or.  455,  20  Am.  St.  Rep.  83(J;  Wallowa  X.  B.  v- 
Riley,  29  Or.  289,  54  Am.  St.  Rep.  794;  Dean  v.  Dee,  5  Wash.  580. 

3  Freeman  on  Executions,  sec.  351;  Bates  v.  Livingston  M.  Co.,  13(^ 
N.  Y.  200;  Harris  v.  Murray,  26  X.  Y.  574,  80  Am.  Dec.  268:  Stone  v> 
Perkins,  85  Fed.  Rep.  616. 

^  Freeman  on  Executions,  sees.  214,  214a. 

''  Freeman  on  Executions,  sec.  215;  Williams  v.  Miller,  16  Conn.  144: 
Phillips  V.  Taber,  83  Ga.  565;  Paxton  v.  Freeman,  6  J.  J.  Marsh.  234, 
22  Am.  Dec.  74;  Johnson  v.  Babcock,  8  Allen,  583;  Twinan  v.  Stuart, 
4  Lans.  263;  Stewart  v.  Welton,  32  Mich.  56:  Colville  v.  Bentley,  7<i 
Mich.  248,  15  Am.  St.  Rep.  312;  Hart  v.  Hyde,  5  Vt.  328. 

'^  Freeman  on  Executions,  sec.  239;  Watts  v.  Gallagher,  97  Cal.  47; 
Viek  V.  Doollttle,  69  HI.  102;  Imhoff  v.  Lipe,  162  111.  282;  Ratliff  v. 
Graves,  132  Mo.  76;  Fulton  v.  Roberts,  113  N.  C.  44;  McCracken  v, 
Adler,  98  N.  C.  400,  2  Am.  St.  Rep.  340. 

12() 


VOID    .JUDICIAL    .SALES.  §    o.J 

it  to  a  valid  execution  sale,  cau  be  waived  or  forfeited,  un- 
less in  some  mode  designated  by  statute.  If  a  homestead 
has  been  the  subject  of  a  judicial  sale,  then  inquiry  must  be 
made  to  determine  whether  all  the  parties  entitled  to  claim 
the  homestead  were  before  the  court,  so  that  its  judgment 
is  conclusive  against  them.  When  they  are  made  parties 
to  a  suit,  they  must,  of  course,  assert  their  rights  therein. 
Thev  cannot   remain   silent,    suffer  judgment,    and   subse- 

•  lueutly  avoid  its  effect.  Thus,  if  suit  is  brought  to  subject 
lands  to  a  judgment  or  other  demand,  or  to  enforce  some 
lien  thereon,  in  which  event,  the  homestead  claim,  if  as- 
serted, must  prevent  any  recovery  on  the  part  of  the  com- 
l)lainants,  the  defendants  must  in  some  appropriate  man- 
ner present  their  claim  to  the  consideration  of  the  court, 
and  cannot,  after  judgment  is  entered  against  them  direct- 
ing the  sale  of  their  homestead,  permit  such  judgment  to 
remain  in  force  and  avoid  its  effect  in  some  collateral  pr<>- 

•  •eeding.'  The  property  claimed  as  a  homestead  may  be  in 
exce-'s  of  the  quantity  which  the  clainumt  is  entitled  to 
hold.  In  such  cases,  the  statute  generally  provides  some 
mode  by  which  the  non-exempt  part  may  be  severed  from 
the  exempt  part  and  subjected  to  the  satisfaction  of  the 
writ.  A  sale  in  the  absence  of  such  severance  is  void  in 
lolo?  From  this  view  there  is  some  dissent  on  the  part  of 
courts  which  claim  that  the  sale  may  be  construed  as  hav- 
ing for  its  subject  that  part  of,  or  interest  in,  the  land 
which  \%  in  excess  of  the  homestead,  and  that  in  such  a  case 
commissioners  may  be  ai)pointed  after  the  sale  to  admeasure 

'  Snapp  V.  Snapp,  S7  Ky.  .").")4;  Hill  v.  T.uncaster,  88  Ky.  338;  Brownell 
V.  Stoddard,  42  \eb.  177:  Traders"  X.  li.  v.  Schorr,  20  Wash.  ].  72  Am. 
8t.  Rep.  17. 

'•^  Owens  V.  Hart,  Wl  Iowa,  ti20;  Mebane  v.  Lay  ton,  8!)  X.  C.  390; 
Kipp  V.  Billiard,  30  Minn.  84;  Mohan  v.  Smith,  30  Minn,  2."i;»;  Hartwell 
V.  McDonald,  (JO  111.  203;  Visek  v.  Doolittle,  00  Iowa,  020;Rip:gsv. 
Sterling,  00  Mich.  043,1  Am.  St.  Rep.  5.")4;  Fogg  v.  Fogg,  40  N.  II. 
282,  77^Am,  Dec.  41.5;  McCracken  v.  Adler,  98  X.  C.  400,  2  Am.  St. 
Kep.  34*0;  I'hilbrick  v.  Andrews,  8  Wash.  7;  Freeman  on  Executions, 
he«.  230. 

127 


^    3.')  VOID    JUDICIAL    SALES. 

Uio  homestead  and  ^et  aside  to  the  chiimant  and  the  pui- 
<'hasei-  respective!}^  the  amounts  thereof  to  which  they  are 
<'ntit]ed,  or  that,  without  such  admeasurement,  the  sale 
mav  be  rcaarded  as  creating  between  them  the  rehition  of 
tenants  in  common.^  If,  under  the  statute  of  a  State,  the 
homestead  of  a  decedent  does  not  come  within  the  control 
of  its  probate  courts,  an  administrator's  sale  thereof, 
thouoh  ordered  and  confirmed  by  the  court,  is  an  idle  pro- 
^•eeding.^  Of  this  there  can  be  no  question,  but  the  diffi- 
culty is  in  determining  whether  and  when  the  homestead  of 
the  decedent  comes  within  the  jurisdiction  of  that  court. 
If  it  is  the  duty  of  the  court  to  act  respecting  it,  as  to  set 
it  aside  to  the  widow  or  for  the  minor  children,  or  to  con- 
sider Avhether  it  is  subject  to  sale  for  the  payment  of  debts 
of  a  certain  class,  or  to  determine  whether  a  homestead  in 
fact  existed  prior  to  the  decedent's  death,  whatever  de- 
cision the  court  expressly  or  impliedly  makes  in  the  exer- 
cise of  its  jurisdiction,  must,  upon  principle,  have  the  force 
of  res  judicata  against  all  the  parties  to  the  probate  pro- 
ceeding, and  hence  its  decision  that  a  sale  shall  be  made, 
followed  by  such  sale  and  its  confirmation,  may  have  the 
effect  to  devest  the  title  of  the  homestead  claimants.'^  If, 
while  acting  under  a  valid  decree  or  license,  an  adminis- 
trator sells  lands  not  embraced  therein,  his  act  is,  as  to 
such  lands,  obviously  without  any  legal  support.* 

^  Swan  V.  Stephens,  99  Mass.  7;  Silloway  v.  Brown,  12  Allen,  32 
Crisp  V.  Crisp,  86  Mo.  630;  Bunn  v.  Lindsay,  95  Mo.  250,  6  Am.  St 
Rep.  49;  Letchford  v.  Caty,  52  Miss.  791;  Cross  v.  Weare,  62  N.  H 
125;  Bradford  v.  Buchanan,  39  S.  C.  23;  Flatt  v.  Stalder,  16  Lea,  371. 

2  Stephenson  v.  Marsalis,  11  Tex.  Civ.  App.  162;  see  ante,  sec.  9a. 
Yarboro  V.  Brewster,  38  Tex.  397;  Hamblin  v.  Warnecke,  31  Tex.  93; 
Howe  V.  McGivern,  25  Wis.  525.  This  is  true,  though  the  sale  is  author- 
ized to  be  made,  and  purports  to  be  made  subject  to  the  homestead 
right.     Wehrle  v.  Wehrle,  39  Ohio  St.  365. 

2  See  ante,  sec.  9a;  Ions  v.  Harbison,  112  Cal.  260;  Sigmond  v.  Beb- 
ber,  104  Iowa,  431. 

■•  Ludlow  V.  Park,  4  Ohio,  5;  Green  v.  Holt,  76  Mo.  677;  Kingsbury  v 
Love,  95  Ga.  543;  Bell  v.  Shaffer,  154  Ind.  413. 

128 


A  OlD    JUDICIAL    SAI,KS.  §    36 

§   otj.   Sales  of  a  Different  or  Less  Interest  than  that  of 

which  the  judgment  debtor,  or  the  estate  of  the  decedent 
was  seized,  have,  in  several  instances,  been  adjudged  to  be 
void.  Thus,  a  sale  which  purported  to  be  subject  to  a 
nioitirage,  when  the  mortgage  had  previously  been  fully 
satistied,  was  adjudged  to  be  wholly  inoperative.  "As  to 
the  tract  which  was  levied  on  and  sold,  subject  to  the 
moitgaoe,  we  are  of  the  opinion  that  nothing  but  the  equity 
of  redemption  can  be  considered  as  having  been  sold;  and 
that  if  the  mortgage  had  previously  been  paid  off,  so  that 
there  was  no  subsisting  mortgage  and  no  equit}'  of  redemp- 
tion, nothing  passed  by  the  sale  and  sheriff's  deed.'*^  So, 
an  administrator's  sale,  under  an  order  "to  sell  the  equi- 
table interest  of  the  estate,  when^the  decedent  held  a  com- 
])lete  title,  legal  as  well  as  equitable,  was  held  to  pass 
nothing  to  the  purchaser;'"-  and  a  like  conclusion  was 
reached  when  an  undivided  interest  was  ordered  to  be  sold, 
when  the  decedent  was  seized  of  an  estate  in  severalty." 
Most  of  the  decisions  on  this  subject  are  not  very  clear  in 
their  statements  of  the  reasons  which  were  thought  sutli- 
rient  to  justify  their  existence.  The  only  substantial  ground 
for  their  justification  is  that  neither  the  ofhcers  charged 
with  the  seizure  and  sale  of  property,  nor  the  courts  in- 
vested with  jurisdiction  over  the  estates  of  minors  or  dece- 
dents, were  intended  to  be  given  ])o\ver  to  carve  a  complete 
and  i)crfect  title  into  distinct   estates  or   interests,  thereby 

'  Dougherty  v.  Linthicuin,  8  Dana,  108;  Bnllard  v.  Hinkley,  (>  CJreenl. 
■2!>U.  20  Am.  Dec.  304.  In  Gray  v.  Ward  (Tenn.  Ch.  App.).  52  S.  VV.  Rep. 
l()2s,  it  was  held  where  an  execution  against  li.  and  J.  was  levied  upon 
a  tract  of  land  devised  to  L.  for  life,  with  remainder  to  her  children, 
and  neither  the  levy  nor  the  order  of  sale  showed  what  her  interest 
was,  and  the  land  was  sold  as  if  it  belonged  wholly  to  her,  that  the 
levy  and  sale  were  void.  The  question  was  not.  however,  discussed  by 
tiie  court,  and  we  do  not  understand  upon  what  reason,  if  any.  its 
decision  was  founded. 

^  Crane  v.  Guthrie.  48  Iowa,  .'542;  Braley  v.  Simonds.  Cl  X.  II.  3(11'. 

'  Kberstein  v.  Oswalt,  47  .Mich.  2r)4. 

(D)  121) 


§    31)  VOID    .UTDICIAL    SALES. 

making  the  subjoct-iuatter  of  the  sale  less  inviting  to  pur- 
chasers, and,  proba])ly,  leading  to  a  needless  sacrifice. 

§  37.  A.  Sale  of  an  Undesignated  or  unlocated  part,  as 
of  a  certain  number  of  acres  out  of  a  larger  parcel,  when 
voluntarily  made,  is  sustained,  and  the  grantee  is  allowed 
to  locate  his  purchase  and,  until  such  location,  is  treated  as 
a  tenant  in  common  with  his  grantor;  but  like  indulgence 
is  not  conceded  to  the  purchaser  at  an  execution  sale  under 
like  circumstances.  On  the  contrary,  his  purchase  is  ad- 
judged to  be  void  for  uncertainty.^ 

§   38.     Sales  of  Property  in  Adverse  Possession. — The 

policy  of  the  common  law  prohibited  the  transfer  of  causes 
of  action.  Lands  of  which  the  owner  was  disseized  could 
not  be  conveyed  during  such  disseizin.  The  conveyance  of 
such  lands  was,  by  statute  (32  Henry  8,  c.  9),  a  crime  for 
which,  on  conviction,  both  vendor  and  vendee  were  subject 
to  the  forfeiture  of  the  value  of  the  lands  sought  to  be  con- 
veyed. Execution  and  judicial  sales  have  never  been  within 
this  inhibition  against  voluntary  transfers.  On  the  contrary, 
they  are  supported,  whether  he  whoso  title  is  involuntarily 
transferred  is  seized  or  disseized."' 

§  39.  Sales  en  Masse. — The  duty  of  an  officer  in  making 
a  sale  is  to  offer  the  property  in  such  parcels  as  Avill  prove 
most  inviting  to  the  bidders,  and  realize  the  greatest  sums 
for  the  heirs  and  other  interested  persons.  Hence,  if  sev- 
eral parcels  of  real  estate  are  embraced  in  one  license,  the 

1  Pemberton  v.  McKae,  75  N,  C.  497;  W^ooters  v.  Arledge,  54  Tex. 
395;  Freeman  on  Executions,  sec.  281. 

-  Drinkwater  v.  Drinkwater,  4  Mass.  354;  Willard  v.  Nason,  5  Mass. 
241;  High  v.  Nelras,  14  Ala.  350,  48  Am.  Dec.  103;  Cook  v.  Travis,  20 
N.  Y.  400;  McGill  v.  Doe,  9  Ind.  306;  Stevens  v.  Hauser,  39  N.  Y.  302; 
Preston  v.  Breckinridge,  86  Ky.  619;  Woodman  v.  Bodfish,  25  Me.  317; 
State  V.  Judge,  48  La.  Ann.  667;  Jackson  v.  Varick,  7  Cow.  238;  Jarrett 
V.  Tomlinson,  3  Watts  &  S.  114;  Kelley  v.  Morgan,  3  Yerg.  441;  Free- 
man on  Executions,  sees.  174,  373.  Contra:  Campbell  v.  P.  S.  I.  Works, 
12  R.  I.  452. 

130 


VOID    JUDICIAL    SALES.  §    40 

administrator  is  to  offer  them  for  sale,  not  in  one  lump,  but 
"■in  such  parcels  as  shall  be  best  calculated  to  secure  the 
greatest  aggregate  amount."'^  AVhere  several  distinct  })ar- 
cels  of  land  are  to  be  sold,  each  ought  to  be  offered  and 
sold  separately,  unless  it  is  clear  that  the  union  of  two  or 
more  will  augment  rather  than  decrease  the  aggregate  pro- 
ceeds of  the  sale.  In  Tennessee,  a  lumping  execution  sale 
of  two  or  more  separate  parcels  of  land  is  void  ;2  but  in 
nearly,  if  not  (piite  all,  the  other  States,  such  a  sale,  though 
voidable,  is  not  a  nullity.^  If  one  of  the  parcels  eold  is  not 
subject  to  sale,  an  essentially  diiferent  question  is  pre- 
sented. The  sale  cannot,  of  course,  be  sustained  as  to  it. 
and  to  sustain  it  as  to  the  other  parcel  must  substantially 
deprive  the  defendant  of  his  right  of  redemption,  because 
he  cannot  exercise  it  without  paying  the  amount  bid  for 
both  parcels.  Hence,  the  sale  has  been  declared  void  as  to 
both.'*  In  Michigan,  a  j)robate  sale  is  not  void,  because 
two  or  more  parcels  are  sold  together.' 

§   40.   Sales  Infected  by  Fraudulent  Combinations  and 

Devices. — Judicial  and  execution  sales  are  usually  impera- 
tive.    Those  who  own   property   are   compelled  to  sell  for 

^  Delaplaine  v.  Lawrence,  3  N.  Y.  304. 

-  Freeman  on  Executions,  sec.  296;  Mays  v.  Wherry,  oS  Tenn.  133; 
Hrien  v.  Robinson,  102  Tenn.  157. 

'Freeman  on  Executions,  sec.  2iJ0:  Houldin  v.  Ewart,  (i3  Mo.  330; 
Foley  V.  Kane,  .")3  Iowa,  (J4;  Smith  v.  Schultz.  68  N.  Y.  41 ;  Lambertou 
V.  Merchants"  Banl<.  24  Minn.  281;  Kector  v.  Hartt,  8  Mo.  448.  41  Am. 
Dec.  1)50;  Wilson  v.  Twitty,  3  Hawks.  44,  14  Am.  Dec.  569;  Hudepohl 
V.  Liberty  Hall  W.  Co.,  94  Cal.  592,28  Am.  St.  Rep.  149;  Palmer  v. 
Riddle,  180  111.  461;  Hoffman  v.  IJuschman,  95  Mich.  538;  Lewis  v. 
Whilten,  112  Ala.  318;  Power  v.  Larrabee,  3  N.  D.  502,  44  Am.  St.  Rep. 
577.  Indiana  and  Pennsylvania,  though  inclined  to  proceed  with 
caution,  will  doubtless,  when  necessity  for  further  action  arises,  '"fall 
into  line"  with  the  majority  of  their  sister  States.  .lones  v.  Kohorao 
!l.  Association,  77  Ind.  340;  Smith  v.  Meldren,  107  Pa.  348;  Nelson  v. 
lironnenberg,  s\  Ind.  102;  Furbish  v.  (Jieene.  108  Pa.  St.  .503. 

*  Mohan  v.  Smith,  30  Minn.  2.59. 

•''  Osman  v.  'I'raphagen,  23  AFich.  80. 

131 


^     41  VOID    -lUDICIAL     SALKS. 

whatever  is  offered.  To  avoid  the  sacrifice  likel}'  to  ensue, 
notices  of  sale  are  required  to  be  given,  the  property  is 
struck  off  to  the  highest  bidder,  and  competition  among  the 
persons  intending  to  bid  is  souglit  to  be  produced.  But  the 
bidders,  on  their  part,  may  enter  into  combinations  and  de- 
vices, either  with  one  another  or  the  officer  conducting  the 
.sale,  l)v  means  of  which  competition  is  lessened  or  alto- 
gether avoided.  Every  scheme  looking  to  this  result  is 
highly  immoral,  and  will,  if  possible,  be  thwarted  by  the 
courts.  The  sale  may  be  vacated,  either  by  motion  or  by  a 
bill  in  e(iuity.  "Whether  a  purchase,  obtained  by  the  pre- 
vention of  comjietition,  can,  by  the  guilty  party  be  asserted 
at  law.  is  a  (piestion  upon  which  the  courts  are  by  no  means 
agreed.  In  several  of  the  States  such  a  purchase,  and  the 
deed  made  in  pursuance  thereof,  are  regarded  as  a  valid 
transfer  of  the  legal  title.  The  defendant  in  execution, 
wishing  to  prevent  the  assertion  of  tliis  title,  must  claim 
the  assistance  of  a  court  of  equity.  But  the  majority  of 
the  decisions  sustain  an  adverse  theory — one  under  which 
the  title  of  the  fraudulent  purchaser  is,  while  in  his  hands, 
regarded  as  void,  and,  therefore,  as  capable  of  being  re- 
sisted not  less  successfully  at  law  than  in  equity."  ^ 

§41.  Purchaser's  Title  Not  Affected  by  Secret  Frauds. 
— It  is  a  general  rule  that  one  who  purchases  at  a  judicial, 
probate  or  execution  sale  cannot  be  deprived  of  his  title 
b}^  secret  frauds  or  irregularities,  in  Avhich  he  did  not  par- 
ticipate and  of  which  he  had  no  notice. ^  Hence,  an  admin- 
istrator's sale   cannot  be  avoided  by   showing  that  he  pro- 

1  Freeman  on  Executions,  sees.  297,  342;  Underwood  v.  McVeigh,  23 
<;ratt,  409;  Burton  v.  Spiers,  92  N.  C.  503;  Cram  v.  Rotherinel,  98  Pa. 
St.  300;  Barton  v.  Hunter,  101  Pa.  St.  406;  Coble  v.  O'Connor,  43  Neb. 
49;  Phelps  V.Benson,  161  Pa.  St.  418. 

-Freeman  on  Executions,  sees.  342,343;  Wisdom  v.  Parlier,  31  La. 
Ann.  .52;  Harriman's  Heirs  v.  Janney,  31  La.  Ann.  276;  Duckworth  v. 
Vaiighan,  27  La.  Ann.  599;  Ziegler  v.  Shomo,  78  Pa.  St.  357;  Maina  v. 
Elliott.  51  Cal.  8;  Wallace  v.  Loomis,  97  U.  S.  146;  Spinlis  v.  Glenn,  67 
(;ii.  744;  Stuart  v.  Keed,  91  Pa.  St.  287;  Melms  v.  Pabst  B.  Co.,  93  Wis. 
l.-)3,  57  Am.  St.  Rep.  899. 

132 


VOID    .TTDICIAL    SALES.  §     41 

oured  his  license  to  sell  by  fraud  and  misrepresentation  in 
the  absence  of  any  necessity,  and  with  the  design  of  sairi- 
ticing  the  interests  intrusted  to  his  care.^  Nor  can  an  inno- 
cent purchaser  be  injuriously  affected  by  proof  of  any  mis- 
take, error  or  fraud  of  an  administrator  or  guardian  in 
conducting  a  sale.^  Although  the  original  purchaser  has 
himself  been  guilty  of  fraudulent  devices,  or  has  had  notice 
of  such  devices  practiced  by  others,  he  can  transmit  a  valid. 
unimpeachable  title  to  a  vendee  for  value,  in  good  faith,  and 
without  notice.  Therefore,  if  a  sale  is  nominally  made  to 
a  stranger,  but  really  for  the  benelit  of  the  administrator, 
and  this  stranger  conveys  to  another,  for  value,  who  has  no 
notice  that  the  apparent  are  not  the  true  facts,  the  tith' 
cannot,  in  the  hands  of  the  latter  or  his  vendees,  be  rendered 
void  or  voida])le  by  proof  of  the  real  facts. '^  The  fact  th:it 
the  purchaser  did  not  pay  the  amount  of  his  bid  until  sev- 
eral months  after  the  sale,  while  it  [may,  as  between  the 
purchaser  and  the  defendant,  entitle  the  latter  to  have  the 
period  allov.cd  for  redemption  computed  from  the  day  of 
such  payment  rather  than  from  the  day  of  sale,  cannot 
prejudice  the  title  of  an  innocent  purchaser  who  bought  in 
good  faith,  relyiuig  on  the  sheriff's  deed.^  A  purchaser  at 
a  guardian's  or  administrator's  sale  is  not  charged  with  the 
duty  of  seeing  to  the  proper  application  of  the  proceeds  of 
the  sale.'  The  validity  of  his  title  is  not  destroyed  by  the 
embezzlement  of  the  money  which  he  has  paid  to  the  person 

'  Lamothe  v.  Lippott,  40  .Mo.  142;  Meyer  v.  McDougal,  47  III.  27S : 
Moore  v.  Neil,  39  111.  256;  McCown  v.  Foster,  33  Tex.  241. 

-  Gwinn  v.  Williams,  30  Ind.374;  Staples  v.  Staples,  24  Gratt.  i-jri: 
.lones  V.  Clark,  25  Gratt.  032;  Patterson  v.  Lemon,  .50  Ga.  231. 

■5  Blood  V.  Hayman,  13  Met.  231;  Staples  v.  Staples,  23  Gratt.  22:); 
liobbins  v.  Bates.  4  Ciish.  104;  Gwinn  v.  Williams,  30  Ind.  374;  Melius 
V.  Pabst  B.  Co.,  03  Wis.  153,  51  Am.  St.  Rep.  S99. 

*  .Maina  v.  Elliott,  51  Cal.  8.  But  there  are  cases  holding  th;it  the  fat't 
of  non-payment  of  the  purchase  money  makes  void  a  probate  sale. 
Corbett  v.  Clenny,  52  Ala.  480;  Wallace  v.  Nichols,  50  Ala.  321. 

^  Grimes  v.  Taft,  98  N.  C  103;  Cooper  v.  Ilorner.  (52  Tex.  3.50;  Knotts 
V.  Stears,  91  U.  S.  038;  Barnes  v.  Trenton  Gas  L.  Co.,  27  N.  J.  y.i\.  :!:5; 
Whitman  V.  Fisher,  74  111.  117. 

If)-) 


§    4  If/  AOII)    .UDK'IAL    SALES. 

:mllu)i'izocl  bv  law  to  loccive  it.^  The  title  of  the  purchaser 
at  an  execution  sale  is  generallv  not  dependent  on  the 
otHcer's  return,  and  a  failure  to  make  such  return  does  not 
avoid  it,'-  neither  is  it  imperiled  hy  defects  and  variances  in 
such  return  when  nuide."^ 

§  41(7.  Purchaser's  Title — Secret  Equities  and  Trans- 
fers.— The  oeneral  rule  is,  that  the  title  of  a  purchaser  at 
an  execution  or  judicial  sale  can  be  no  greater  or  better 
than  that  of  the  defendant  in  the  writ.  If  the  property  of 
a  stranger  to  the  writ  or  suit  is  sold,  the  sale  cannot  affect 
his  title,  though  such  property  was  seized  under  the  writ, 
was  in  possession  of  the  officer  when  the  sale  was  made,  and 
was  by  him  delivered  to  the  purchaser.^  A  conveyance 
executed  pursuant  to  the  sale  is  equivalent  in  effect  to  a 
deed  of  quitclaim  b}-  the  defendant  at  the  time  of  the  sale, 
where  it  is  not  supported  by  any  antecedent  lien,  otherwise 
at  the  date  of  the  attachment  of  such  lien.^  One  result  of 
this  is,  that  if  the  defendant  subsequently  to  the  sale  ac- 
quires title,  it  does  not  vest  in  the  purchaser  unless  it  would 
have  so  vested  had  the  defendant  in  person  made  the  con- 
veyance by  quitclaim.'^      Sometimes  the  purchaser  acquires 

1  Giles  V.  Pratt,  1  Hill  (S.  C),  239,  2<;  Am.  Dec.  170;  Miilford  v.  Stal- 
zenback,  46  111.  303;  Muskingum  Bank  v.  Carpenter,  7  Ohio.  pt.  1,  p. 
21,  28  Am.  Dec.  616. 

-'  Bray  v.  Marshall,  75  Mo.  327;  Holman  v.  Gill,  107  111.  467;  Caldwell 
V.  Blake,  69  Me.  4.58;  Freeman  on  Executions,  sec.  341.  Contra:  Walsh 
V.  Anderson,  135  Mass.  65. 

^  Freeman  on  Executions,  sec.  341;  Hebbert  v.  Smith,  3  W.  C.  Rep. 
446;  Millis  v.  Lombard,  32  Minn.  .544;  Ritter  v.  Seammell,  11  Cal.  238, 
70  Am.  Dec.  775;  Hunt  v.  Loucks,  38  Cal.  372,  99  Am.  Dec.  404. 

•♦  Freeman  on  Executions,  sec.  335;  Fekin  M.  Co.  v.  Kennedy,  81  Cal. 
358;  Haberling  v.  Jagger,  47  Minn.  70,  28  Am.  St.  Rep.  331;  Andrews  v. 
Key,  77  Tex.  35;  United  L.  T.  Co.  v.  Boston  S.,  etc..  Co.,  147  U.  S.  431. 

^  Cotton  V.  Carlisle,  85  Ala.  175,  7  Am.  St.  Rep.  29 ;  Thain  v.  Rudisill, 
126  Ind.  276;  Hentig  v.  Pipher,  58  Kan.  788;  Home  v.  Nugent,  74  Miss. 
102;  Butler  v.  Fitzgerald,  43  Neb.  192,  37  Am.  St.  Rep.  741;  Miller  v. 
Baker,  160  Pa.  St.  172;  Washburn  v.  Green,  133  U.  S.  30. 

>'  Kenyon  v.  Quinn,  41  Cal.  325;  McArthur  v.  Oliver,  60  Mich.  606; 
Westheimer  v.  Reed,  15  Neb.  662;  Gentry  v.  Callahan,  89N.  C.  448; 
Bates  V.  Bacon.  66  Tex.  348. 

134 


VOID    JUDICIAL    SALES.  §    41a 

the  title  of  the  plaintiff  us  well  as  that  of  the  defendaut,  as 
when  the  sale  is  made  to  enforce  a  vendor's  lien,^  or  under 
a  decree  foreclosino;  a  mortgage.-  In  some  cases  a  pur- 
chaser at  an  execution  or  judicial  sale  acquires  a  greater  or 
better  title  than  the  defendaut  had.  The  purchaser's  title 
is  not  subject  to  secret  equities  of  which  he  had  no  notice, 
actual  or  constructive,  though  they  are  such  as  might  be 
enforced  against  the  defendant  but  for  the  sale.'^  A  pur- 
chaser is  entitled  to  the  benefit  of  the  laws  requiring  the 
recording  of  conveyances  and  incumbrances  affecting  the 
title  to  real  property.  Hence,  his  title  cannot  be  destroyed 
or  impaired  by  proving  the  existence  of  such  conveyances 
or  incumbrances  made  by  the  defendant  prior  to  the  sale,  if 
they  were  not  then  of  record,  and  the  purchaser  had  no 
notice  thereof  .^  If  it  is  the  plaintiff  who  purchases,  making 
no  other  payment  than  such  as  is  implied  in  the  satisfaction 
of  his  judgment,  there  is  doubt  whether  he  is  entitled  to 
protection  against  unrecorded  conveyances  or  incumbrances, 
the  weight  of  the  authority  inclining  slightly  to  the  view 
that  he  is  not.'^ 


'  Freeman  on  Executions,  sec.  385;  Fallon  v.  Worthington,  13  Colo. 
ij5it.  16  Am.  St.  Rep.  231. 

2  Lanier  v.  Mcintosh,  117  Mo.  .508,38  Am.  St.  Rep.  67G;  Mount  v. 
Manhattan  Co.,  43  X.  J.  Eq.  3.5;  Townshend  v.  Thompson,  139  X.  Y- 
1.52;  Givens  v.  Carroll,  40  S.  C.  13,  42  Am.  St.  Rep.  889. 

^  Freeman  on  Executions,  sec.  336;  Hudepohl  v.  Liberty  Hill  \V.  Co.. 
92  Cal.  588,  28  Am.  St.  Rep.  149;  White  v.  Leeds  I.  Co.,  72  Minn.  352,  71 
Am.  St.  Rep.  488;  Ryan  v.  Staples,  78  Fed.  Rep.  563. 

*  Freeman  on  Judgments,  sees.  366,  366a;  Freeman  on  Executions, 
sec.  330;  De  Lany  v.  Knapp,  111  Cal.  165,  52  Am.  St.  Rep.  160;  Duff  v. 
Randall,  116  Cal.  226,  .58  Am.  St.  Rep.  158;  Lusk  v.  Reel,  36  Fla.  418,  51 
Am.  St.  Rep.  32;  Maroney  v.  Boyle,  141  X'^.  Y.  462,  38  Am.  St.  Rep.  821 ; 
Barnett  v.  Squyres,  93  Tex.  193,  77  Am.  St.  Rep.  854. 

'  Freeman  on  Executions,  sec.  336;  Shirk  v.  Thomas,  121  Ind.  147,  16 
Am.  St.  Rep.  381 ;  Barnett  v.  Vincent,  69  Tex.  685,  5  Am.  St.  Rep.  98; 
Evans  v.  AVelbourne,  74  Tex.  .530,  15  Am.  St.  Rep.  8.58;  Hacker  v. 
White,  22  Wash.  415,  79  Am.  St.  Rep.  945.  Contra:  Riley  v.  Martinotti, 
97  Cal.  .575,  33  Am.  St.  Rep.  209;  Lusk  v.  Reel,  36  Fla.  418,  51  Am.  St. 
R<'p.  32. 

135 


§      11 /y  VOID    .lUOlClAL    SALKS 


(HIAPTER  IV. 


PROCEEDINGS  ATTER  THE  SALE. 

416.  Complying  with  tbe  Statute  of  Frauds. 
41c.  The  Officer's  Return  or  Certificate  of  Sale. 
41d.  The  Report  Where  the  Sale  Must  be  Confirmed. 

42.  jSTotice  of  the  Application  for  Confirmation. 

43.  Confirmation  is  Essential  to  Title. 

44.  The  Effect  of  the  Confirmation. 

4.5.    Deed  is  Essential  to  Transfer  of  Legal  Title. 

46.  Deed,  When  and  by  Whom,  May  be  Made. 

47.  Deed  When  Void,  Because  not  in  Proper  Form. 

§   410.   Complying  Avith  the   Statute   of    Frauds. — The 

only  proceeding  after  the  acceptance  of  the  purchaser's  bid 
of  which  we  can  think  which  is  ab?5oliitely  indispensable  to 
the  consummation  of  a  valid  sale,  is  the  making  of  a  mem- 
orandum sufficient  to  satisfy  the  statute  of  frauds,  where 
the  sale  is  one  which,  if  voluntary,  would  fall  within  the 
provisions  of  that  statute.  The  officer  has  authority  to 
make  this  memorandum,  and  it  does  not  seem  to  be  mate- 
rial when  or  how  he  makes  it;  and  this  has  led  to  the  con- 
tention that  neither  judicial  nor  execution  sales  are  within 
that  statute.  We  believe  the  contention  to  be  unfounded,. 
but  it  is  doubtless  true  that  any  writing  of  the  officer,  made 
in  his  official  capacity,  Avhether  in  his  sales  book,  in  his  re- 
turn to  the  writ,  in  the  certificate  of  purchase,  or  even  in 
the  deed,  may  serve  the  purpose  of  a  memorandujii  and  1)e 

13() 


VOID    JUDICIAL    SALES.  §    4Ic 

deemed  a  sufficient  compliance  with  the  statute.^  Delivery 
of  possession  to  the  purchaser  is  not  indispensable.  These 
sales  are  not  within  the  general  rule  making  sales  fraudu- 
lent and  void  as  against  creditors  unless  followed  by  an 
immediate  and  continuous  change  of  possession.  Ilcnco. 
there  is  no  ground  for  contending  that  a  judicial  or  execu- 
tion sale  is  void  because  the  purchaser  did  not  at,  or  subse- 
quently to,  the  sale,  receive  or  hold  possession  of  the  prop- 
ertv  purchased.-  Payment  of  the  bid  is  not  indispensable 
to  a  valid  sale.  It  is  true  that,  until  such  pa3-ment,  the 
purchaser  has  no  right  which  he  can  enforce  other  than  the 
right  of  compelling  acceptance  of  such  payment  if  tend- 
ered.-^ It  has  been  held  that  a  conveyance  executed  by  the 
proper  officer  without  exacting  payment  of  the  l)id  is  voidJ 
Such  we  cannot  believe  to  be  the  law.  It  would  be  danger- 
ous to  introduce  in  the  law  of  execution  or  judicial  sales  a 
rule  that  a  return  or  conveyance  showing  payment  of  the 
bid  may  be  collaterally  impeached,  and  the  title  of  the  pur- 
chaser or  his  successor  in  interest  thereby  destroyed.  If 
the  rule  is  to  be  accepted  at  all,  it  should  be  with  the  lim- 
itation that  it  can  be  applied  only  against  the  original  i)ur- 
rhaser  and  such  of  his  successors  as  are  not  entitled  to 
protection  as  bona  fide  purchasers."' 

§   41c*.    The   Officer's   Return  or  Certificate  of  Sale. — 

Sheriffs  and  coustables  are  required  by  law  to  return  writs 
to  the  court  issuing  them,  Avith  indorsements  showino-  the 
proceedings    taken   thereunder.     Such  return   or  indorse- 

1  Freeman  on  Executions,  sec.  290;  Linn  B,  T.  Co.  v.  Terrill.  V^ 
I'.usb,  403;  Stearns  v.  EJson,  03  Vt.  209,  25  Am.  St.  Rep.  7r)8. 

'Freeman  on  Executions,  sec.  ]')1 ;  Matteucci  v.  AVbelan,  123  L'al. 
312,  69  Am.  St.  Rep.  70;  Iluebler  v.  Smith,  02  Conn.  183,  30  Am.  St. 
Hep.  337. 

•'  Freeman  on  Executions,  sec.  301. 

H'hapman  v.  Ilarwood,  S  Blackf.  82,  44  Am.  Dec.  730;  Ruckle  v. 
Harbour,  48  Ind.  274;  Mc('ormick  v.  Tbe  W.  A.  Wood  M.  A:  K.  M.  <'<>.. 
72  fnd.  .")18. 

■'  Freeman  on  Execiilion.-.  see.  301. 


§    Aid  VOID    JUDICIAL    SALES. 

mont  may  constitute  sufficient  evidence  of  the  sale,  but  the 
sale  cannot  bo  deemed  void  liccause  of  anything  which  the 
return  states  or  omits.  The  purchaser  is  not  bound  by  it 
and  may  prove  without,  or  even  in  opposition  to  it  the  f  act^ 
essential  to  a  valid  sale.^  Where  the  sale  is  of  personal 
property,  the  officer  selling  i,s  often  by  statute  required  to 
deliver  to  the  purchaser  a  bill  of  sale.  We  regard  this 
merely  as  evidence  of  the  sale  and  not  as  essential  to  its 
consummation  or  to  the  vesting  of  title  in  the  purchaser. 
If  the  property  sold  is  real  estate  or  some  interest  therein, 
and  the  title  is  not  to  vest  in  the  purchaser  until  after  the 
i'xpiration  of  some  time  allowed  by  law  within  which  the 
defendant  is  entitled  to  redeem,  the  officer  may  be  required 
to  execute  and  file  for  record  a  certificate  of  purchase  show- 
ing the  judgment  under  which  he  acted,  the  property  sold, 
the  amount  paid  therefor,  the  name  of  the  purchaser,  and 
the  time  within  which  redemption  may  be  made.  The 
omission  to  comply  with  the  statute  does  not  make  the  sale 
void,  but  there  may  be  exceptional  circumstances  in  which 
the  failure  to  file  the  certificate  for  record  may  entitle  a 
hona  Jide  {nwclia^ev  to  protection  against  title  derived  un- 
der it.^ 

§   41c?.   The  Report  Where  the  Sale  Must  be  Confirmed. 

— AVhere  a  sale  is  subject  to  the  approval  of  some  court,  it 
must,  of  course,  be  in  some  manner  made  known  to  that 
court,  and  the  statutes  relating  to  judicM  sales,  more 
especially  those  made  by  guardians,  executors,  and  admin- 
istrators, usually  require  a  report  of  the  proceedings,  dis- 
closing generally  what  notice  Avas  given  of  the  intended 
sale,  what  property  was  sold,  the  name  of  the  purchaser, 
and  such  other  facts  as  may  assist  the  court  in  determining 
whether  th3  sale  was  fairly  and  lawfully  made  and  ought  to 

1  Freeman  on  Executions,  sec.  341 ;  Willamette  K.  E.  Co.  v.  Hendrix, 
28  Or.  48.1,  52  Am.  St.  Rep.  800;  ante,  sec.  41. 

-  Freeman  on  Executions,  sec.  312;  Bowers  v.  Arnoux,  30  N.  Y.  Sup. 
Or.  Rep.  .530;  Phillips  v.  Hyland,  102  Wis.  253. 

138 


VOID    JUDICIAL    SALES.  §    42 

1h'  approved,  "Wo  need  not  here  enter  into  an}'  considera- 
tion of  these  statutory  regulations.  They  are  usually,  if 
not  universally,  treated  as  directoiy  merely.  Hence,  no  de- 
fect in  the  report  of  the  sale,  as  by  failing  to  verif}-  it,  or 
the  making  of  it  by  an  agent  when  the  principal  alone  could 
act,  or  the  omission  therefrom  of  some  matter  which  ought 
to  be  stated,  can  be  held  sufficient  to  avoid  it  after  its  con- 
iirmation,^  unless  it  be  that  it  was  filed  by  one  who  had 
been  an  administrator  or  executor  after  he  had  been  dis- 
•charoed  from  the  duties  of  his  trust  and  could  no  longer 
represent  the  estate.  While  to  us  it  does  not  seem  that 
■even  this  would  deprive  the  court  of  jurisdiction  to  act,  yet 
in  at  least  one  State  the  contrary  has  been  held,  and  the 
contirmatiou  and  sale  adjudged  void.- 

§   42.  Notice  of  the  Application  for  Couflrmatiou. — By 

whatever  mode  the  making  of  the  sale  may  be  made  known 
to  the  court  the  statute  may  require  some  notice  to  be  given 
before  the  court  proceeds  to  determine  what  action  it 
will  take.  This  nuiy  be  regarded  as  an  independ- 
<.'nt,  adversary  proceeding  which  is  to  result  in  a  judg- 
ment or  order  depriving  the  persons  affected  by  the 
sale  of  title'  to  their  property  and  the  notice  as  in  the  na- 
ture of  a  citation  to  bring  them  into  court.  If  so,  as  in 
cases  of  other  required  citations  or  summonses,  the  jurisdic- 
tion of  the  court  depends  upon  their  service  in  substantially 
the  mode  required  by  law.  A  statute  may  authorize  the 
confirmation  of  a  sale  without  notice  to  the  heirs  or  other 
])ersons  interested,''  but  when  such  notice  is  re(iuired  we 
understand  it  to  be  jurisdictional,  and  hence  if  admissible 
evidence  shows  that  it  was  not  given,  the  sale  nuist  be  ad- 

'  Spiawins  V.  Tayler,  48  Ala.  520;  Denis  v.  Winter,  G3  Cal.  18;  Hig- 
gin.s  V.  Reed,  48  Kan.  272;  Coon  v.  Frj'.  6  Mich.  50G;  Brown  v.  Ilobbs, 
1!)  Tex.  107;  Harris  v.  Shafer  (Tex.  Civ.  App.),  21  S.  W.  Jlep.  110. 

=  Garner  v.  Tucker,  Ol  Mo.  427;  Melton  v.  Fitch,  12")  Mo.  281. 

"  Maj'v.  Marlv.-!.  74  Ala.  249:  ^Nloore  v.  Cottinghani,  113  Ala.  148,  .")0 
Am.  St.  Kep.  KH). 

13i> 


§    43  VOID    JUDICIAL    SALKS. 

iiulo-ed  void,    notwithstaiulino-  its  contirinution,    for    such 

JO  ' 

coiiHriiialion  is  but  a  void  judguieul.' 

§  43.  Confirmation  is  Essential  to  Title. — When  the 
law  undci-  which  a  .sale  is  made  requires  it  to  be  reported 
to  court  for  ajiproval  or  disapproval,  such  approval  is  essen- 
tial to  the  contirination  of  the  sale.  AVithout  it  there  is  no 
authority  for  making  any  conveyance  to  the  purchaser, ^ 
and  a  conveyance  without  authority  is  obviously  void.-^ 
This  rule  is  equally  applicable  to  execution,  chancery  and 
probate  sales."'  But  instances  may  occur  in  which  the  rati- 
fication or  acquiescence  of  the  parties  may  either  estop 
them  from  invoking  this  rule  or  give  rise  to  the  presunq)- 
tion  that  an  order  of  confirmation  was  made,  of  which  the 
evidence  has  been  lost.^     So,  the  approval  of  the  court  has 


1  Boiling  V.  Smith.  1U8  Ala.  -tH ;  Bogart  v.  Bell,  112  Ala.  412;  Dagger 
V.  Tayloe,  00  Ala.  504;  Perkins  v.  Gridley,  50  Cal.  97;  Hawkins  v. 
Hawkins,  28  Ind.  G6;  Speet  v,  Wohlein,  22  Mo.  310;  perhaps,  coH«ra, 
McGlawhorn  v.  Worthington,  98  N.  C.  199. 

2  Freeman  on  Executions,  sec.  304a;  Reed  v.  Radigan,  42  Ohio  St. 
292;  McBain  v.  McBain,  15  Ohio  St.  337;  Curtis  v.  Norton,  1  Ohio,  137; 
Horton  V.  .Jack,  115  Cal.  29;  Apel  v.  Kelsey,  47  Ark.  413;  Maynard  v. 
Cocke  (Miss.),  18  South.  Rep.  374;  Knox  v.  Spratt,  19  Fla.  834;  Miller 
V.  Freezor,  82  N.  C.  194;  Greenough  v.  Small,  137  Pa.  St.  132,  21  Am. 
St.  Rep.  859. 

3  Williamson  v.  Berry,  8  How.  (U.  S.)  496;  Gowan  v.  .Tones,  10  S.  & 
M.  164;  Dickerson  v.  Talbot,  14  B.  Mon.  60;  Kable  v.  Mitchell,  9  W. 
Va.  492;  Jones  v.  Hollingsworth,  10  Heisk.  652;  Battell  v.  Toney,  65  N. 
Y.  299. 

^  Lumpkins  v.  Johnson,  61  Ark.  80;  Greer  v.  Anderson,  62  Ark.  213; 
Hicks  V.  Blakeman,  74  Miss.  4.59;  Bone  v.  Tyrrell,  113  Mo.  175;  Burden 
V.  Taylor,  124  Mo.  12;  Harrison  v.  Ligner,  74  Tex.  80;  Mason  v.  Osgood, 
64  N.  C.  467;  Rawlins  v.  Bailey,  15  111.  178;  Valle  v.  Fleming,  19  Mo. 
4.54;  Wallace  V.  Hall,  19  Ala.  367;  Rea  v.  McEachron,  13  Wend.  465, 
28  Am.  Dec.  476;  Bonner  v.  Greenlee,  6  Ala.  411 ;  Wade  v.  Carpenter, 
4  Iowa,  361 ;  State  v.  Towl,  48  Mo.  148. 

5  Henderson  v.  Herrod,  23  Miss.  434;  Tipton  v.  Powel,  2  Coldw.  19; 
Smith  V.  West,  64  Ala.  34;  Watts  v.  Scott,  3  Watts,  79;  Gowan  v.  Jones, 
10  S.  &  M.  164;  Moore  v.  Greene,  19  How.  (U.  S.)  69.  In  some  cases 
the  confirmation  of  probate  sales  Is  not  required  by  statute.  Hobson 
V.  Ewan,  62  111.  140;  Robert  v.  Casey,  25  Mo.  584.     In  Missouri,  the 

140 


VOID    JUDICIAL    SALES.  §    43 

sometimes  been  inferred  from  its  subsequent  acts  and  pro- 
ceedings, though  no  order  of  confirmation  could  be  found 
in  its  record.^  The  faiku'e  of  the  clerk  of  the  court  to 
enter  the  decree  of  confirmation  on  the  minutes  of  the 
court  is  not  fatal  to  the  purchaser's  title,  where  it  sufliciently 
appears  that  such  decree  was  in  fact  ordered  bj  the  court. ^ 
In  the  absence  of  any  statute  to  the  contrary,  it  is  not 
material  in  what  form  the  approval  of  the  sale  is  expressed. 
The  whole  record  of  the  court  will  be  examined,  and  if 
from  anything  therein  it  is  apparent  that  a  sale  was  ap- 
proved, this  is  sufficient.  Hence,  the  confirmation  of  a  sale 
is  inferable  from  an  entry  approving  the  accounts  of  an 
executor  or  administrator,  if  therein  he  has  charged  himself 
with  the  proceeds  of  the  sale.-^  Surely  it  is  the  better 
practice  to  have  a  formal  order  of  confirmation  entered  and 
to  set  forth  therein  the  acts  done  by  the  oflicer,  so  that  an 
inspection  of  the  order  will  of  itself  show  that  the  court 
has  found  the  giving  of  the  proper  notice  and  the  doing  of 
such  other  acts  as  were  essential  to  the  sale,  and  further, 
what  were  the  terms  of  the  sale,  the  price  realized,  the 
property  sold,  and  the  person  to  whom  the  sale  was  made; 
but,  unless  some  statute  so  directs,  it  is  not  necessaiy  that 
all  or  any  of  these  facts  appear  by  the  order  of  confirmation 
itself,  for  the  order  of  sale,  the  report  of  the  executor  or 
administrator,  and  all  of  the  papers  on  file,  as  well  as  the 
minutes  of  the  court,  may  be  examined,  and  if,  when  taken 
in  connection  with  the  sale  and  the  order  of  approval,  these 
facts  sufficiently  appear,  the  sale  cannot  be  held  invalid  for 
want  of  proper  confirmation.^     Sometimes,  as  in  California, 

pnle  of  land?  under  an  order  of  the  probate  court  must  be  con- 
firmed; but  confirmation  is  not  indispensable  to  sales  in  proceedings 
l)ffore  the  circuit  court.  State  v.  Towl,  48  i\Io,  14S;  Castleman  v. 
Jielfe,  .50  Mo.  583. 

'  Grayson  v.  Weddle,  03  Mo.  .523;  Robertson  v.  Johnson,  57  Tex.  G-J. 

2  Moody  V.  Butler.  03  Tex.  210. 

=5  Pendleton  v.  Shaw,  IS  Tex.  Civ.  App.  439. 

*  r.imton  V.  Root.  GO  Minn.  4'A;  Carey  v.  West.  13;»  Mo.  IJO;  Camden 

141 


§    44  VOID    JUDICIAL    SALES. 

the  statute  itself  makes  some  provision  respecting  the  con- 
tents of  the  order  of  confirmation.  Thus,  the  Code  of 
Civil  Procedure  of  that  State  declares  that  before  any  order 
is  entered  contirming  a  sale,  it  must  be  proved  to  the  satis- 
faction of  the  court  that  notice  was  given  of  the  sale  as 
prescribed,  and  the  order  of  confirmation  must  show  that 
such  proof  was  made.  What  the  effect  of  non-compliance 
with  this  mandate  is  no  court  has,  so  far  as  we  know,  been 
required  to  consider.  We  believe,  however,  it  may  be 
safely  assumed  not  to  avoid  the  sale,  though  perhaps  it  may 
cast  upon  the  claimant  thereunder  the  burden  of  proving 
the  giving  of  the  notice  of  the  sale. 

§  44.  The  Effect  of  the  Confirmation. — In  Kansas,  the 
confirmation  by  the  court  of  an  execution  sale  "is  an 
adjudication  merely  that  the  proceedings  of  the  officer,  as 
they  appear  of  record,  are  regular,  and  a  direction  to  the 
sheriff  to  complete  the  sale."^  With  respect  to  chancery 
and  probate  sales,  we  apprehend  that  their  confirmation  has 
an  effect  beyond  that  conceded  in  Kansas  to  the  confirma- 
tion of  execution  sales.  The  object  of  the  proceeding  for 
confirmation  is  to  furnish  an  opportunity  for  inquiry  re- 
specting the  acts  which  have  been  done  under  the  license  to 
sell,  and  to  obtain  the  decision  of  the  court,  whether,  under 
all  the  existing  circumstances,  the  sale  should  be  set  aside 
or  approved.  If  the  court  has  jurisdiction  to  prosecute  this 
inquiry  and  to  make  this  decision,  its  approval  must,  upon 
principle,  be  received  as  an  adjudication  that  such  acts  have 
taken  place  as  were  necessary  to  justify  the  sale,  that  it  has 
been  made  as  reported,  or  as  disclosed  by  the  order  of 

V.  Plain,  91  Mo.  117;  Henry  v.  McKerlie,  78  Mo.  416;  Perry  v.  Blakey. 
5  Tex.  Civ.  App.  331;  Pendleton  v.  Shaw,  18  Tex.  Civ.  App.  439;  Loyd 
V.  Waller,  74  Fed.  Rep.  601. 

'  Koehler  v.  Ball,  2  Kan.  172,  83  Am.  Dec.  451 ;  Briggs  v.  Tye,  16  Kan. 
291;  Havens  v.  Pope  (Kan.  App.),  62  Pac.  Rep.  538;  Commissioners 
v.  Mcintosh,  30  Kan.  239.  In  this  State,  however,  when  the  sale  is  pro- 
bate or  judicial,  the  order  of  confirmation  has  the  same  effect  as  in 
other  States.   Thompson  v.  Burge,  60  Kan.  549,  72  Am.  St.  Rep.  36'^ 

142 


VOID    JUDICIAL    SALE8.  §    44 

oonlimiatiou,  and  that  as  made  it  should  be  and  is  approved. 
When  afterwards  some  attempt  is  collaterally  made  to  avoid 
the  sale,  and  involves  an  inquiry  which  should  have  been 
pursued  by  the  court  before  directing  the  contirmation,  such 
inquiry  may  fairly  be  regarded  as  no  longer  open,  for  the 
reason  that  the  matter  has  already  been  adjudicated.  As 
to  the  matters  upon  Avhich  a  court  is  required  to  adjudicate 
in  its  order  of  contirmation,  we  see  no  reason  why  its  decis- 
ion should  not  be  binding,  and  should  not  preclude  the 
i-eassertion  of  any  matter  which  was  either  passed  upon  by 
the  court, ^  or  which  the  parties  might  have  had  passed  upon 
if  they  had  chosen  to  bring  it  to  the  attention  of  the  court.'- 
Hence,  after  the  confirmation,  the  purchaser's  liability  is 
established,  and  he  can  no  longer  assert,  while  the  order  of 
confirmation  remains  uiivacated,  that  the  sale  was  not  made, 
nor  that  it  included  property  different  from  that  shown  by 
the  report  or  confirmation,  nor  that  the  title  was  defective, 
nor  that  reasons  existed  for  releasing  him  from  his  bid,  nor 
any  other  matter  inconsistent  with  the  order  of  contirma- 
tion.'* 

The  only  question  strictly  material  here  is,  to  what  extent 
does  the  contirmation  of  the  sale  protect  the  purchaser  from 
the  claim  that  the  sale  is  void.  In  the  first  place,  if  there 
is  an  alleged  failure  to   comply  with  some   direction  of  the 

1  State  X.  B.  v.  Xeel,  53  Ark,  110,  22  Am.  St.  Rep.  185;  Hammond  v. 
Cailleaud,  111  Cal.  206,  .52  Am.  St.  Rep.  1G7;  Klein  v.  Loeber,  82  111. 
App.  528;  Thompson  v.  Burge,  00  Kan.  .549,  72  Am.  St.  Rep.  3G9;  Kin- 
caid  V.  Tate,  88  Ky.  302;  Watson  v.  Tromble,33  Xeb.  450;  29  Am.  St- 
492;  Thompson  v.  Davidson,  7(3  Va.  338;  Allison  v.  Allison,  88  Va.  328. 

2  Willis  V.  Xicholson,  24  J^a.  Ann.  545;  Cockey  v.  Cole,  28  Md.  270, 
92  Am.  Dec.  004;  llotchkiss  v.  Cutting,  14  Minn.  537;  Brown  v.  Gil- 
mor.  8  Md.  322;  Thorn  v.  Ingram,  25  Ark.  58;  Osman  v.  Traphagan,  23 
Mich.  80;  Conover  v.  Musgrove,  OS  111.  58;  McRae  v.  Danner,  8  Or. 
03;  Dawson  v.  Litsey,  10  Bush,  408;  Wilcox  v.  Raben,  24  Xeb.  308: 
Speet  V.  Pullman  P.  C.  Co.,  121  111.  33. 

^  Brummagln  v.  Ambrose,  8  Cal.  308;  Barron  v.  Mulliu,  21  .Minn.  370; 
Mechanics' S.  B.  &  L.  A.  v.  O'Connor,  29  Ohio  St.  055;  Dresbach  v. 
State,  41  Ohio  St.  70;  Sackett  v.  Twining,  18  Pa.  St.  199.  57  Am.  Dec. 
.599;  Long  V.  Weller,  29  (Jratt.  3.52. 

143 


§    Ai  VOID    JUDICIAL    SALES. 

decree  or  of  the  law  with  which  the  court  had  power  to 
dispense  before  the  sale,  it  may  generally  dispense  with  it 
afterwards,  and  the  confirmation  is  equivalent  to  a  dispens- 
ino-  with  such  direction  or  condition,  as  where  the  officer  did 
not  sell  the  property  upon  the  terms  recjuired  by  the  decree 
or  order  of  sale,  in  which  case  its  confirmation  must  be 
accei)ted  as  an  approval  of  the  different  terms  imposed  or 
accepted  by  the  officer  and  disclosed  to  the  court  by  his 
report  of  the  sale,  or  otherwise.^ 

The  chief  value  of  the  order  of  confirmation  to  the  pur- 
chaser is  to  protect  him  from  the  claim  that  some  supposed 
condition  precedent  to  the  sale  has  not  been  complied  with, 
and  hence  that  the  sale  cannot  be  sustained.  The  order  of 
confirmation  is  equivalent  to  an  adjudication  either  that 
such  condition  precedent  did  in  fact  exist,  or,  where  the 
court  had  power  to  dispense  with  it,  that  the  court  regarded 
the  sale  as  one  proper  to  be  approved,  notwithstanding  the 
omission  of  such  condition.  In  the  first  place,  in  the  ab- 
sence of  evidence  to  the  contrary,  the  order  of  confirmation 
undoubtedly  creates  a  presumption  of  the  regularity  of  the 
original  proceedings,  and  it  cannot  be  successfully  insisted 
that  a  sale  was  void  because  the  record  or  other  evidence 
fails  to  show  the  existence  of  some  fact  which  ought  to  have 
preceded  the  sale.  It  will,  therefore,  be  presumed  in  sup- 
port of  an  order  of  confirmation  that  there  was  proof  of  the 
posting  of  the  notices  of  the  sale,^  or  that  the  administrator 
gave  the  bond  necessary  to  authorize  him  to  make  the  sale,-^ 
or  that  a  citation  had  been  issued  and  served  as  the  law 
directs  on  the  filing  of  an  application  for  a  guardian's  sale, 
and  prior  to  the  entry  of  the  order  of  sale.*     After  a  sale 

1  Thorn  v.  Ingram,  25  Ark.  58;  Jacob's  Appeal,  23  Pa.  St.  477;  Rob- 
ertson V.  Smith,  94  Va.  250,  64  Am.  St.  Rep.  723;  Emery  v.  Vroman,  19 
Wis.  689,  88  Am.  Dec.  726. 

2  Lariner  v.  Wallace,  36  Neb.  444;  Ferguson  v.  Templeton  (Tex. 
Civ.  App.),  32  S.  W.  Rep.  148. 

3  Andrews  v.  Goff,  17  R.  I.  205. 

*  Butler  V.  Stephens,  77  Tex.  599. 

144 


VOID    JUDICIAL    SALES.  §    44 

has  been  confirmed,  it  cannot  be  defeated  by  showing  col- 
laterally that  there  was  a  failure  to  appraise  the  property,^ 
or  a  defect  in  the  notices  of  sale,^  or  that  the  administrator 
did  not  exact  security  for  the  payment  of  the  purchase 
money, ^  or  that  the  commissioner  w^io  made  the  sale  was 
not  authorized  to  make  it,*  or  that  the  officer  departed  from 
the  order  of  sale  prescribed  by  the  decree,^  or  that  the 
summons  served  on  the  heirs  w^as  returnable  in  ten  days 
instead  of  twenty,  or  that  there  was  no  notice  of  the  applica- 
tion for  the  confirmation  of  the  sale,  and  that  an  appointment 
of  a  guardian  ad  litem  was  made  without  inquiry  respecting 
his  fitness,^  or  that  the  sale  was  for  cash  when  the  law 
required  it  to  be  upon  credit,'  or  that  the  sale  was  improp- 
erly adjourned  from  the  court  house,  where  it  was  advertised 
to  take  place,  to  another  place  in  the  county  near  the  land 
in  question,^  or  that  the  letters  of  administration  were  void 
because  they  did  not  bear  upon  their  face  the  impress  of 
the  seal  of  the  court.'-^  If  the  order  of  sale  incorrectly 
describes  the  laud  intended  to  be  sold,  but  contains  some 
elements  of  description  which,  if  pursued,  may  show  the 
land  to^ which  the  order  was  intended  to  apply,  and  it  is 
correctly  described  in  the  order  of  confirmation,  this  may, 
perhaps,  cure  the  infirmity  of  the  order.  The  court  in  this 
case  said:  "We  are  strongly  inclined  to  the  opinion  that 
where  such  a  sale  has  been  brought  in  question  in  a  collateral 


»  Xeligh  V.  Keene,  16  Neb.  407;  Apel  v.  Kelsey,  47  Ark.  413;  Noland 
V.  Barrett,  122  Mo.  181,  43  Am.  St.  Rep.  572. 

2  Wyant  v.  Tutbill,  17  Xeb.  49.5;  Richardson  v.  Butler,  82  Cal.  174,  IG 
A  in.  St.  Rep.  101;  Zillner  v.  Gerichten,  111  Cal.  73;  Thompson  v.  Burge^ 
00  Kan.  549,  72  Am.  St.  Rep.  309;  Hugo  v.  Miller,  50  Minn.  105. 

■■'  Wilkerson  v.  Allen,  07  Mo.  502. 

*  Core  V.  Strieker,  24  W.  Va.  689. 

''  McGavock  v.  Bell,  3  Coldw.  512. 

«  McGlawhorn  v.  Worthington,  98  N.  C.  199. 

'  Cassells  v.  Gibson  (Tex.  Civ.  App.),  27  S.  W.  Rep.  725. 

^  Thompson  v.  Burge,  00  Kan.  549,  72  Am.  St.  Rep.  369. 

■'  Dennis  v.  Bint,  122  Cal.  39,  G8  Am.  St.  Rep.  17. 

(10)  145 


§    4-1:  VOID    JUDICIAL    SALES. 

manner,  the  decree  of  confinnatiou  should  protect  the  pur- 
chaser, and  be  preclusive  of  all  questions  save  that  of  the 
jurisdiction  of  the  court  over  the  estate,  which,  as  we  have 
seen,  the  court  had  in  this  instance.  It  is  possible  for  a 
sale  to  be  reported  and  confirmed  Avithout  any  previous 
order  having  been  made,  and  the  interested  parties  be  con- 
tent with  the  transaction ;  and  it  would  seem  a  vicious 
principle  that  would  admit  of  their  allowing  the  sale  to  be 
perfected  when,  by  an  appeal,  they  could  have  it  avoided,  and 
afterwards  avail  themselves  of  the  defect  in  a  collateral  suit 
for  the  property  against,  as  in  this  case  remote  purchasers."^ 
The  Code  of  Civil  Procedure  of  California  declares,  with 
respect  to  probate  sales,  that  "all  sales  must  be  under  oath, 
reported  to  and  confirmed  by  the  court,  before  the  title  to 
the  property  sold  passes."  In  an  action  of  ejectment,  it 
appeared  that  defendant's  title  was  based  on  a  probate  sale; 
that  the  return  of  sales,  as  offered  and  received  in  evidence, 
was  not  verified,  but  that  the  order  of  confirmation  contained 
a  recital,  "  that  the  return  of  sale  was  duly  verified  by  afii- 
davit."  The  court  said:  "This  recital  is  conclusive  in  the 
present  case,  and  a  finding  of  fact  to  the  contrary  does  not 
in  any  manner  affect  the  conclusiveness  of  the  recital  in  the 
decree.  The  fact  was  not  a  jurisdictional  one  and  the  prin- 
ciple applicable  to  the  inconclusiveness  of  statements,  or 
recitals  in  judgments,  conferring  jurisdiction,  does  not 
apply.  "2 

The  curative  powers  of  orders  of  confirmation  extend 
to  voidable,  rather  than  to  void  sales.  If  a  sale  is  void  be- 
cause the  court  did  not  have  jurisdiction  to  order  it,  or 
because  it  included  property  not  described  in  the  decree  or 
order  of  sale,  an  order  confirming  it  is  necessarily  inopera- 
tive. "  The  sale  being  void,  there  was  no  subject-matter 
upon   which  the  order  of  confirmation  could  act.     If  the 

1  Corley  v.  Goll,  8  Tex.  Civ.  App.  184. 

2  Dennis  v.  Winter,  63  Cal.  16. 

146 


VOID    JUDICIAL    SALES.  §    44 

court  had  no  jurisdiction  to  order  the  sale,  it  had  none  to 
confirm  it.  Where  there  is  no  power  to  render  a  judgment, 
or  to  make  an  order,  there  can  be  none  to  confirm  or  exe- 
cute it."  ^  Thus  where  an  order  of  sale  is  necessary,  its 
absence  cannot  be  supplied  by  an  order  confirming  the  sale. 
If  there  was  no  pre-existing  order  of  sale,  or  if,  though 
such  order  was  entered,  the  court  did  not  have  jurisdiction 
to  enter  it  because  of  the  failure  to  give  notice  of  the  ap- 
plication therefor,  or  for  any  other  reason,  the  court  not 
having  jurisdiction  to  order  the  sale  is  equally  without 
jurisdiction  to  confirm  a  sale  made  under  its  void  order.^ 
If,  after  property  is  sold  at  probate  sale  to  the  highest 
bidder,  he  fails  to  comply  with  his  bid,  and  another  person 
is  substituted  in  his  place,  and  is  reported  to  the  court  as 
the  purchaser,  and  the  sale  is  confirmed  to  the  latter,  he 
cannot  avoid  the  sale  and  be  exonerated  from  paying  the 
purchase  price.  "The  mere  substitution  of  one  person  for 
another  cannot  affect  the  validity  of  the  sale.  The  order 
directing  the  sale,  and  the  order  confirming  it,  give  vitality 
to  purchase."  ^ 

The  irregularities  which  are  cured  by  the  entry  of  a  decree 
or  order  of  confirmation  relate  chiefly,  if  not  exclusively,  to 
the  proceedings  of  the  court  and  its  oflScers  or  of  the  person 
conducting  the  sale.  The  sale  may  have  been  attended  by 
wrongful  acts  or  devices  of  the  purchaser,  or  by  the  positive 
fraud  either  of  himself  or  of  others,  of  which  he  had  notice, 
actual  or  presumed.     Questions  involving  these  frauds  are 

>  Minn.  Co.  v.  St.  Paul  Co.,  2  Wall.  GOO;  Pike  v.  Wassail,  94  U.  S.  74; 
Gaines  v.  New  Orleans,  G  Wall.  042;  Montgomery  v.  Samory,  99  U.  S. 
482;  Townsend  v.  Tallant,  33  Cal.  54,  91  Am.  Dec.  G17;  Shriver  v.  Lynn, 
illow.  (U.  S.)  57;  Hawkins  v.  Hawkins,  28  Ind.  70.  See  Bethel  v. 
liethel,  G  Bush,  65. 

2  Culver  V.  Hardenburgh,  37  Minn.  225;  Cunningham  v.  Anderson, 
107  Mo.  321,  28  Am.  St.  Rep.  417;  Young  v.  Downey,  145  Mo.  250,  68 
Am.  St.  Rep.  .568;  Willamette  R.  E.  Co.  v.  llendrix,  28  Or.  485,  52  Am. 
St.  Rep.  800;  Glasgow  v.  McKinnon,  79  Tex.  116. 

••'Halleck  v.  Guy,  9  Cal.  197,  70  Am.  Dec.  643;  Ewing  v.  Higby,  7 
Ohio,  pt.  1.  p.  198,  28  Am.  Dec.  633. 

147 


§    45  VOID    -7UD1CIAL    SALES. 

not  ordinarily  presented  for  consideration  at  the  time  the 
sale  comes  on  for  approval  or  disapproval.  Their  existence 
is  generally  not  discovered  until  a  later  date.  When  they 
are  not  suggested  to  the  court  by  the  return  of  sale,  or  by 
some  other  means,  they  remain  open,  notwithstanding  the 
decree  of  confirmation.^  The  better  opinion,  however,  in 
our  judgment  is,  that  such  sales  are  not  absolutely  void  in 
the  sense  that  they  are  subject  to  collateral  attack. ^  Relief 
may  sometimes  be  had  by  an  application  to  the  court  for  an 
order  vacating  the  order  of  confirmation  and  setting  aside 
the  sale,'^  or  by  an  independent  suit  in  equity,  relying  upon 
fraud,  surprise,  or  other  suflicient  ground  for  equitable  in- 
terposition.* 

As  the  purchaser's  title  is  dependent  upon  the  order  of 
confirmation,  w^hatsoever  destroys  that  order  destroys  his 
title.  Usually,  if  after  a  sale  under  a  judgment  or  decree 
to  a  third  person  it  is  reversed,  the  reversal  does  not  impair 
his  title.  The  rule  is  necessarily  different  where  it  is  the 
order  confirming  the  sale  which  is  reversed.  The  purchaser, 
though  not  ordinarily  a  party  to  the  suit,  is  necessarily  a 
party  to  the  order  of  confirmation,  and  to  any  proceeding 
taken  for  its  reversal,  and  such  reversal  necessarily  affects 
him  by  removing,  as  it  does,  an  indispensable  link  in  his 
chain  of  title. ^ 

§  45.  Deed  Essential  to  the  Transfer  of  Legal  Title. — 
A  conveyance  is  necessar}^  to  invest  the  purchaser  at  an 
execution,  chancer}^  or  probate  sale  with  the  legal  title. ^  In 
Maryland,  Texas  and  Louisiana,  this  rule  seems  not  to  apply 

•  Jackson  v.  Ludeling,  21  Wall.  633;  City  Bank  v.  Walden,  1  La.  Ann. 
46;  Sharpley  v.  Plant  (Miss.),  28  South.  Rep.  799. 

^  Palmerton  v.  Hoop,  131  Ind.  23. 

2  Kaupman  v.  Nicewaner,  60  Neb.  208. 

*  Springston  v.  Morris,  47  W.  Va.  50. 

5  Dunfee  v.  Childs,  45  W.  Va.  155. 

6  Hayes  V.N.  Y.  M.  Co.,  2  Colo.  273;  Goss  v.  Meadors,  78  Ind.  528; 
Freeman  on  Executions,  sec.  324;  Merrit  v.  Terry,  13  Johns.  471 ;  Doe 
V.  Hardy,  52  Ala.  291 ;  Hudgens  v.  Jackson,  51  Ala.  514;  Van  Alstyne  v. 

148 


VOID    JUDICIAL    SALES.  §    4() 

to  execution  sales, ^  though  in  Texas  a  conveyance  by  an 
administrator  is  conceded  to  be  essential  to  the  transfer  of 
the  legal  title  after  a  probate  sale.^ 

§  46.  Deed,  AVlien  and  by  Whom  to  be  Made. — In 
Massachusetts  and  Maine,  under  statutes  prescribing  that 
licenses  for  sales  should  continue  in  force  for  one  year  only 
after  they  were  given,  it  was  held  that  the  execution  of  a 
deed  Avas  a  part  of  the  sale,  and  that,  if  not  executed  Avithin 
one  year  after  the  granting  of  the  license,  it  was  void.-^  We 
cannot  concur  in  this  opinion.  A  sale  is  certainly  complete 
when  it  has  been  regularly  confirmed  by  the  court,  and  the 
purchase  price  has  been  paid  to  the  person  entitled  to  re- 
ceive it.  Even  if  this  be  not  true,  the  purchaser  has  acquired 
an  equitable  title — a  right  to  a  conveyance  in  pursuance  of 
his  purchase  and  payment.  A  court  of  equity  would  recog- 
nize and  protect  this  right  by  decreeing  a  conveyance.^  If 
a  conveyance  can  be  compelled,  certainly  it  ought  not  to 
be  void  merely  because  made  without  compulsion.'^  No 
conveyance  ought  to  be  made  before  the  payment  of  the 
purchase  money.*''  If  made  before  such  payment,  it  is  void 
in  Indiana.'  But,  we  apprehend  that,  as  a  general  rule, 
such    a  conveyance  is  voidal)le  rather   than  void.^     If  the 

Wimple,  5  Cow.  162;  Farmers'  Bank  v.  Merchant,  13  How.  Pr.  10; 
Blodgett  V.  Perry,  97  Mo.  203,  10  Am.  St.  Rep.  307;  Greenongb  v. 
Small,  137  Pa.  St.  132. 

1  Boring  V.  Lemmon,  5  H.  &  J.  223;  Leland  v.  Wilson,  34  Tex.  91; 
Fleming  v.  Powell,  2  Tex.  225;  Jouet  v.  Mortimer,  29  La.  Ann.  20G. 

2  Sypert  v.  McCowen,  28  Tex.  638. 

"••  Macy  V.  Raymond,  9  Pick.  287;  Wellman  v.  Lawrence,  ir>  Mass.  320; 
Mason  v.  Ham,  36  Me.  573. 

<  Piatt's  Heirs  v.  McCullough's  Heirs,  1  McLean,  69;  Sherwood  v. 
Baker,  105  Mo.  472,  24  Am.  St.  Rep.  399. 

■'  Howard  v.  Moore,  2  Mich.  220;  Osman  v.  Traphagen,  23  Mich.  80. 

«  Barnes  v.  Morris,  4  Ired.  Eq.  22;  .Johnson  v.  Hines,  61  Md.  122. 

"  Ruckle  v.  Barbour,  48  Ind.  274;  Chapman  v.  Harwood,  8  Blackf.  82- 
In  Alabama,  an  order  to  convey  before  all  the  purchase  money  is  paid 
is  a  nullity,     (."oibitt  v.  Clenny,  52  Ala.  480. 

"  Osman  v.  'J'laphagen,  23  Mich.  80. 

140 


§  4G  VOID  JUDICIAL  salp:s. 

statute,  under  which  a  sale  is  made,  does  not  authorize  a 
conveyance  until  after  the  expiration  of  the  time  allowed 
the  defendant  to  redeem  his  property,  a  deed  made  in  ad- 
vance of  that  time  is  a  nullity.^  After  the  right  to  a  deed 
has  become  perfect,  we  believe  it  may  be  made  at  any  time.^ 
This  remains  true,  though  he  whose  title  is  thus  conveyed 
has  died  either  before  or  after  the  sale,  for  if  the  sale  when 
made  is  authorized,  the  death  of  the  party  can  neither  de- 
stroy nor  suspend  the  power  of  the  officer  making  the  sale 
to  execute  an  appropriate  conveyance,  nor  impair  its  force 
when  executed.^ 

There  may  be  circumstances  from  which  the  execution  of 
a  deed  may  be  presumed  without  strict  evidence,  as  where 
the  purchaser,  soon  after  the  sale,  takes  possession  of  the 
property  and  holds  it  for  manjM^ears  without  objection.^  In 
a  few  of  the  States,  the  execution  of  a  deed  seems  to  be  re- 
garded as  not  essential,  and  the  instrument,  when  executed, 
is  merely  an  additional  muniment  of  title. '^  If  the  time  for 
redemption  has  expired,  and  the  purchaser,  being  in  pos- 
session, is  sued  in  ejectment,  the  absence  of  a  conveyance 
ma}'  not  be  fatal  to  him,  for  the  proof  of  the  facts  showing 
him  to  be  entitled  to  a  conveyance  may  be  sufficient  to 
negative  any  right  of  possession  on  the  part  of  the  plaintiff;''' 
but  if  it  is  the  purchaser  Avho  brings  the  action  to  recover 
possession,  or  if,  for  any  other  reason,  it  is  necessary  for 
him  to  show  the  legal  title,  he  must  obtain  a  convej^ance, 

^  Freeman  on  Executions,  sees.  316,  325;  Perham  v.  Kuper,  61  Cal 
331. 

-  In  Illinois,  the  deed  must  be  made  within  eight  years  and  three 
months  after  the  sale,  unless  the  court,  on  motion,  authorizes  it  to  be 
made  at  a  later  date.  Rucker  v.  Dooley,  49  111.  377,  95  Am.  Dec.  614; 
Cottingham  v.  Springer,  88  III.  90. 

3  Thomas  v.  Thomas,  87  Ky.  343;  United  States  v.  Insley,  54  Fed. 
Rep.  221. 

4  Norman  v.  Eureka  Co.,  98  Ala.  479,  39  Am.  St.  Rep.  45. 

5  Onarato's  Interdiction,  46  La.  Ann.  73;  Leland  v.  Wilson,  34  Tex. 
91 ;  Remington  v.  Linthicum,  14  Pet.  92. 

6  Diamond  v.  Turner,  11  Wash.  189. 

150 


VOID    JUDICIAL    SALES.  §    46 

for  without  it,  however  perfect  his  equity,  it  must  be  con- 
ceded that,  in  point  of  hiw,  he  has  not  the  title. ^ 

An  administrator's  executor's  or  guardian's  deed  must  be 
made  in  person.  These  officers  exercise  powers  in  the  nature 
of  trusts  wherein  special  confidence  is  reposed.  Hence, 
they  cannot  delesfate  their  authority  to  agents, ^  though  in 
the  event  of  their  refusal  or  their  death  or  other  inability 
to  act,  relief  may  be  granted  in  some  appropriate  proceeding, 
either  by  compelling  their  action  or  by  appointing  someone 
to  act  for  them.-^  Sheriff,s  and  constables,  on  the  other 
hand,  may  have  deputies,  and  such  deputies  are  competent 
to  execute  conveyances  in  the  names  of  their  principals.* 
The  power  of  such  officers  does  not  terminate  with  their 
terms  of  office.  Their  successors,  unless  authorized  by  stat- 
ute, have  no  authority  to  convey  property.  The  conveyance 
must  be  executed  by  him  who  made  the  sale,  though  he  no 
longer  continues  to  be  an  officer,^  or  In'  his  de})uty,  for  the 
deputy,  notwithstanding  the  expiration  of  the  principal's 
official  term,  retains,  unless  his  authority  has  been  revoked, 
l)0\ver  to  execute  conveyances  in  the  name  of  the  principal.'' 
If  there  is  no  officer  or  person  in  existence  competent  to 
execute  the  deed,  the  court  will  u})on  motion  appoint  some 
person  and  thereby  invest  him  with  power  to  make  the  ap- 
j>ropriatc  conveyance."  In  Mississippi,  an  administrator^/^ 
bonis  non  cannot  execute  a  conveyance  where  the  sale  was 
made  by  his  predecessor  in  office.^     But  we  judge  the  betler 

'  Freeman  on  Executions,  sec.  324;  Blodgett  v.  Terry,  07  Mo.  2l!H,  10 
Am.  St.  Rep.  307;  Turner  v.  Sawyer,  150  U.  S.  578. 

2  Gridley  v.  Phillips.  6  Kan.  340. 

'•■  Dean  v.  Lanford,  9  Rich.  Eq.  423. 

••  Freeman  on  F^xecutions,  sec.  327. 

'"  People  V.  Bowring.  8  Cal.  406,  08  Am.  Dec.  331 ;  Lemon  v.  Craddock, 
LItt.  Sel.  Cas.  2G1,  12  Am.  Dec.  301 ;  Porter  v.  Mariner,  50  Mo.  3(;4. 

6Tuttle  V.  Jackson,  t;  Wend.  213;  Mills  v.  Tukcy,  22  Cal.  373,  s3  Am. 
Dec.  74;  Robinson  v.  Ifall,  33  Kan.  13!). 

'  People  V.  Bowrlng,  s  ('al.  40(i,  08  Am.  Dec.  331 ;  Sickles  v.  llogo- 
boom,  10  Wond.  502;  Head  v.  Daniels,  38  Kan.  11. 

"Davis  V.  Brandon,  1  How.  (MisB.)  154. 

151 


^    47  VOID    JUDICIAL    SALES. 

lulo  io  1)0,  lliat  such  an  administrator  may  complete  what- 
ovor  (he  first  administrator  ought  to  have  done.^ 

A  couvovance  made  to  a  person  not  entitled  to  receive  it, 
as  where  a  deed  is  given  to  one  as  assignee,  when  no  assign- 
ment has  been  made,  is  void.^  "The  deed  can  only  be  made 
to  the  original  purchaser  at  the  sale,  or  to  his  successor  in 
interest.  The  interest  of  the  purchaser  may  be  assigned ; 
or  it  may,  at  his  death,  become  vested  in  his  heirs  or  devisees, 
or  his  executors  or  administrators,  in  trust  for  such  heirs  or 
devisees.  Though  the  statute  makes  no  direct  provision  for 
the  issuing  of  a  deed  to  any  one  but  the  purchaser,  his  power 
to  assign  the  certificate  of  purchase,  and  the  consequent 
rio-ht  of  his  assignee  to  a  conveyance  seem  to  be  conceded.-^ 
The  fact  of  the  assignment  should  be  recited  in  the  sheriff's 
deed;  and,  when  so  recited,  the  deed  is  at  least  prima  facie 
evidence  that  the  assignment  w^as  made  as  therein  stated."* 

§  47.  Deed,  When  Void  Because  not  in  Proper  Form. 
— The  instances  in  which  a  deed,  issued  in  pursuance  of  an 
execution  or  chancery  sale,  is  void  for  errors,  defects  or 
mistakes  in  form,  are  very  rare.  In  fact,  any  instrument 
executed  by  an  officer  authorized  to  make  it,  purporting  to 
convey  the  property,  is  probably  sufficient,  if  the  acts  nec- 
essary to  authorize  him  to  make  a  conveyance  can  be 
shown. -"^  Of  course,  the  deed  must  l)e  executed  with  the 
fornuilities  essential  to  other  deeds,  and  must  show  that 
the  person  who  signs  it  is  acting  in  an  official  capacity,  and 
not  merely  conveying  his  own  title  to  the  property.  In 
some  States  a  form  for   sheriff's  deeds  is  prescribed  by 

1  Gridley  v.  Phillips,  5  Kan.  354. 

2  Carpenter  v.  Sherfy,  71  111.  427;  Hannah  v.  Chase,  4  N.  D.  351,  50 
Am.  St.  Rep.  686. 

3  Gibbs  V.  Davis,  168  111.  205;  Ward  v.  Lowndes,  96  N.  C.  367. 

*  Freeman  on  Executions,  sec.  328;  Messerschmidt  v.  Baker,  22  Minn. 
81. 

*  Freeman  on  Executions,  sec.  329;  Hill  v.  Reynolds,  93  Me.  25,  74 
Am.  St.  Rep.  329;  Exum  v.  Baker,  118  N.  C.  545. 

152 


VOID    JUDICIAL    SALES.  §    47 

statute.     These  statutes  are  geuerrtlly,  but  not  universally, 
declared  to  be  directory  merely.^ 

Deeds  executed  by  executors,  administrators  or  guard- 
ians, are,  in  many  States,  treated  with  less  indulgence  than 
those  made  by  sheriffs.  This  is  particularly  the  case  where 
a  statute  has  directed  that  some  statement  or  recital  shall 
be  set  forth  in  the  deed.  Such  statutes,  with  reference  to 
administrator's  and  guardian's  deeds,  have  been  held  im- 
perative, and  not  directory  merely.  Thus,  where  a  statute 
required  an  order  to  l)e  set  forth  at  large,  a  deed  merely 
referring  to  such  order,  and  stating  its  substance,  was  ad- 
iudo-ed  void. 2  The  correctness  of  this  decision  mav  be 
doubted.  Perhaps  an  omission  to  refer  to  an  order,  or  a 
reference  which  does  not  fulh'  describe  the  order,  will, 
under  a  statute  simihir  to  the  one  just  alluded  to,  render 
the  deedvoid,^  but,  in  our  judgment,  a  deed  which  sets 
forth  the  substance  of  the  order  ought  to  be  regarded  as 
sufficient.^  In  truth,  we  sec  no  reason  for  regarding  these 
statutory  provisions  respecting  recitals  in  a  deed  as  other- 
wise than  directory.^ 

Although  a  statute  requires  the  order  of  sale,  and  also 
that  of  confirmation,  to  be  referred  to  or  set  out  in  the 
deed,  a  mere  mistake  in  the  reference  is  not  fatal,  if  it  ap- 
pears from  the  deed,  taken  as  a  whole,  that  the  reference, 
as  made,  is  a  mistake,  and  that  it  was  intended  to  embrace 
the  orders  under  which  the  sale  and  deed  were,  in  fact, 
made.'^     In  the  absence  of  a  statute  providing  otherwise,  it 

1  Wright  V.  Young.  0  Or.  87;  Bludworth  v.  Poole,  21  Tex.  Civ.  App. 
.5.51;  Freeman  on  Executions,  sec.  329;  Armstrong  v.  McCoy,  S  Ohio, 
12S,  31  Am.  Dec.  435;  Bettison  v.  Budd,  17  Ark.  558,  G5  Am.  Dec.  442; 
Ogden  V.  Walters,  12  Kan.  290;  Perkins'  Lessee  v.  Dibble,  10  Ohio,  433, 
.30  Am.  Dec.  97;  Holman  v.  Gill,  107  III.  407. 

2  Smith  V.  Finch,  1  Scam.  323. 

'Atkins  V.  Kinnan,  20  Wend.  241,32  Am.  Dec.  534.     Contra:  Ham- 
mann  v.  Mink,  99  Ind.  279. 
*  Sheldon  v.  Wright,  7  Barb.  39,  5  X.  Y.  497. 
'  Stryker  v.  Vanderbilt,  27  X.  .1.  Law,  (iS. 
«  Sheldon  V.  Wright,  5  X.  Y.  497;  Thomas  v.  Le   Baron,  S  Met.  301 ; 

153 


>;    47  VOID   JUDICIAL    SALKS. 

ouirht  to  be  sutHcient  for  u  conveyance  by  an  executor,  ad- 
ministrator, or  guardian  to  show  that  he  is  such,  and  in- 
tonds  in  making  the  conveyance  to  act  in  that  capacity. ^ 
Ilowevor  desirable  the  recitals  showing  the  orders  and  other 
acts  authori/iug  the  sale,  they  are  not  indispensable,  and 
the  existence  of  those  orders  and  acts  may  be  proved  by 
other  competent  evidence.  If,  in  making  recitals,  some 
error  occurs,  resulting  in  a  variance  between  the  recital  and 
the  fact  or  thing  recited,  this  is  not  fatal  to  the  instrument 
as  a  conveyance  of  title,^  nor  is  it  material  that  he  who 
makes  a  conveyance  describes  himself  as  an  executor  when 
he  is  in  fact  an  administrator,  or  as  an  administrator  when 
he  is  an  executor.^  The  same  rule  applies  to  mistakes  and 
omissions  in  the  recitals  in  deeds,  made  in  pursuance  of 
execution  sales. ^  Irrespective  of  any  statutory  directions 
on  the  subject,  every  administrator's,  executor's  or  guard- 
ian's deed  should  refer  to  the  authority  or  license  under 
which  it  is  made;  should  state  that  the  person  making  it 
acted  under  such  license;  and  should  contain  apt  words  to 
convev  the  estate  of  the  ward  or  decedent,  as  contradistin- 

.Jones  V.  Taylor,  7  Tex.  242,  56  Am.  Dec.  48;  Moore  v.  Wingate,  53  Mo. 
398;  Glover  v.  Ruffin,  6  Ohio,  255;  Clark  v.  Sawyer,  48  Cal.  133; 
Mitchell  V.  Bliss,  47  Mo.  353;  Speck  v.  Riggins,  40  Mo.  405;  Davis  v. 
Kline,  76  Mo.  310;  Williams  v.  Woodman,  73  Me.  163. 

i  Coffin  V.  Cook,  106  N.  C.  376;  Langdon  v.  Strong,  2  Vt.  234. 

-  Brubaker  v.  Jones,  23  Kan.  411;  Williams  v.  Wood,  73  Me.  163; 
Thomas  v.  Le  Baron,  8  Met.  355;  Garner  v.  Tucker,  61  Mo.  427;  Melton 
V.  Fitch,  125  Mo.  281. 

3  Mobberly  v.  Johnson,  78  Ky.  273;  Cooper  v.  Robinson,  7  Cush.  184. 

■•Freeman  on  Executions,  sec.  329;  Brooks  v.  Rooney,  11  Ga.  423, 
56  Am.  Dec.  430;  Gourdiu  v.  Davis,  2  Rich.  481,  45  Am.  Dec.  745; 
Howard  v.  North,  5  Tex.  290,  51  Am.  Dec.  769;  Haskins  v.  Wallet,  63 
Tex.  213;  Phillips  v.  Coffee,  17  111.  154,  63  Am.  Dec.  357;  Keith  v. 
Keith,  104  111.401;  Humphrey  v.  Beeson,  1  G.  Greene,  199,  48  Am. 
Dec.  370;  Harrison  v.  Maxwell,  2  N.  &  McC.  347,  10  Am.  Dec.  611 ;  Mc- 
Guire  v.  Kouns,  7  Mon.  386, 18  Am.  Dec.  187;  Martin  v.  Wilbourne,  2 
Hill,  395,  27  Am.  Dec.  393;  Hind's  Heirs  v.  Scott,  11  Pa.  St.  19,  51 
Am.  Dec.  .506;  Lamb  v.  Sherman,  19  Neb.  681;  Davidson  v.  Kahn,  ll9 
Ala.  364;  Beardsley  v.  Higman,  58  Neb.  257. 

154 


VOID    JUDICIAL    SALES.  §    47 

guished  from  the  private  estate  of  the  person  executing  the 
deed;^  but  it  need  not  recite  all  the  steps  taken  in  making 
the  sale,  as  that  the  sale  was  at  public  auction,  and  that 
the  grantee  was  the  highest  bidder.'^  Where  statutes  ex- 
ist, directing  what  recitals  shall  be  set  forth  in  sheriff's 
deeds,  occasional  decisions  may  be  found  declaring  such 
deeds  void,  because  of  their  non-compliance  with  the  stat- 
ute. These  decisions  will  generally  be  found  restricted  to 
cases  where  the  omission  in  the.  deed  was  of  a  matter  abso- 
lutely essential  to  the  support  of  the  sale,  as  the  omission 
to  recite  the  judgment,-^  or  the  time  of  the  sale,  where  sales 
can,  under  the  statute,  take  place  only  at  certain  designated 
times,  for  instance,  during  the  term  of  the  court.*  In 
other  words,  the  deed  must  show  an  authority  to  sell,  and 
that  such  authority  was  pursued  substantially  as  prescribed 
l»y  law.  Beyond  this,  even  in  States  where  statutes  under- 
take to  specify  the  recitals  to  be  inserted  in  a  sheriff's 
deed,  omissions  and  misrecitals  are  not  fatal.' 

Whether  the  deed  be  made  pursuant  to  an  execution  or 
a  judicial  sale,  the  description  of  the  property  which  has 
been  sold  and  which  the  oflBcer  intends  to  convey  is  of 
special  importance.  We  apprehend  that  the  rules  by  which 
the  descriptive  parts  of  a  deed  must  be  interpreted  are  the 
same,  whether  the  deed  be  voluntary  and  executed  by  the 
grantor  in  person,  or  involuntary  and  executed  on  his  behalf 
])y  some  officer  authorized  by  law.*^'     The  description  must 

1  Jones  V.  Taylor,  7  Tex.  242,  5(5  Am.  Dec.  48;  Bobb  v.  Barnum,  59 
Mo.  394;  Griswold  v.  Bigelow.  6  Conn.  2.58;  Lockwood  v.  Sturdevant, 
G  Conn.  373.  The  two  cases  last  named  are  limited  in  Watson  v.  Wat- 
son, 10  Conn.  77. 

2  Kingsbury  v.  Wild,  3  N.  il.  30. 

3  Dufour  V.  Camfranc,  11  Mart.  607,  13  Am.  Dec.  360. 

*  Tanner  v.  Stine,  18  Mo.  580,  59  Am.  Dec.  320:  Martin  v.  Bonsach,  61 
Mo.  5i)6. 

'  Buchanan  v.  Tracy,  45  Mo.  437;  Strain  v.  Murphy,  49  Ind.  337. 

«  Taller  v.  .Johnson,  81  Ga.  254;  Smith  v.  Xelsoa,  110  Mo.  552; 
Terry  V.  Scott,  109  X.  C.  374;  Overand  v.  Menzer,  83  Tex.  122.  "In 
regard,  however,  to  the  description  of  the  property  conveyed,   the 

155 


^    47  VOID    .lUDlClAL    SALES. 

ho  oapahlc  of  being  applied  to  some  one  tract  or  some 
dofmilo  part  thereof. ^  It  must  not  be  equally  applicable  to 
two  or  more  tracts.'^  Descriptive  Avords  which  are  inade- 
quate in  a  voluntary  conveyance  are  not  necessarily  so  in 
one  executed  i)ursuant  to  a  judicial  or  execution  sale,  be- 
cause thev  may  be  made  certain  by  its  recitals  and  other 
wriliuijs  which  arc  thereby  so  referred  to  that  they  may  he 
proi)erly  considered  as  a  part  of  the  deed  for  the  purpose 
of  making  its  descriptive  language  more  perfect.  Thus, 
such  a  conveyance  is  ordinarily  preceded  l)y  a  levy  and  ad- 
vertisement of  sale,  and  often  by  a  certificate  of  purchase, 
some  or  all  of  which  are  referred  to  in  the  deed.  Hence, 
in  addition  to  the  words  used  for  the  purpose  of  descrip- 
tion, it  usually  appears  from  the  recitals  that  the  land  in- 
tended to  l)e  conveyed  is  that  levied  upon  under  a  writ 
designated,  and  is  that  land  which,  at  a  time  named,  was 
advertised  for  sale,  and  afterwards  sold,  and  though  the 
descriptive  words  in  the  deed  may  be  inadequate,  or,  in 
some  respects,  erroneous,  such  inadequacy  may  be  made 
adequate,  or  such  error  corrected,  by  reference  to  the  offi- 
cer's return  of  his  levy,  or  his  notice  of  sale,  or  to  that 
part  of  his  return  stating  the  property  sold,  and  the  person 
by  whom  it  was  purchased.     In  either  event,  we  think,  the 


rules  are  the  same,  whether  the  deed  be  made  by  a  party  in  his  own 
right,  or  by  an  officer  of  the  court.  The  policy  of  the  law  does  not 
require  courts  to  scrutinize  the  proceedings  of  a  judicial  sale  with  a 
view  to  defeat  them.  On  the  contrary,  every  reasonable  intendment 
will  be  made  in  their  favor,  so  as  to  secure,  if  it  can  be  done  consist- 
ently with  legal  rules,  the  object  they  were  intended  to  accomplish." 
White  v.  Luning,  93  U.  S.  514;  Marshall  v.  Greenfield,  8  G.  &  J.  358,  29 
Am.  Dec.  559;  Herrich  v.  Morrill.  37  Minn.  250,  5  Am.  St.  Kep.  841; 
Atkinson  v.  Cummins,  9  How.  (U.  S.)  479.  Xelson  v.  Bradhach,  44  Mo. 
590,  100  Am.  Dec.  328,  seems  to  be  inconsistent  with  the  views  here  ex- 
pressed. 

1  Freeman  on  Executions,  sec.  330;  .Jones  v.  Carter,  56  Mo.  403. 

2  Tatum  V.  Croom,  60  Ark.  487;  Cadwalader  v.  Nash,  73  Cal.  43;  Bor- 
ders V.  Hodges,  154  HI.  498;  Beze  v.  Calvert,  2  Tex.  Civ.  App.  202;  Har- 
ris V.  Schaeffer,  86  Tex.  314. 

156 


VOID    JUDICIAL    SALES.  §    47 

description  must  be  regarded  as  suflScient  to  devest  the  title 
of  the  judgment  debtor  if  all  doubt  is  removed  by  incor- 
porating in  it  the  information  derived  from  these  various 
writings,  all  of  which  merely  constitute  successive  steps  in 
a  proceeding  of  which  the  deed  is  but  the  last.^ 

A  conveyance  may  contain  several  elements  of  descrip- 
tion, some  of  which  are  false.  This  is  not  fatal  if  means 
exist  of  separating  the  false  from  the  true,  and  the  latter 
are  sufficient  to  identify  the  property,  as  where  the  lands 
are  described  as  in  district  number  two,  whereas  thc}^  are 
in  number  three,  but  other  facts  of  description  are  stated, 
and  from  them  and  maps  offered  in  evidence  it  appears  that 
the  lands  cannot  be  in  number  two.  but  must  be  in  number 
three, 2  or  a  deed  describes  lands  by  the  number  of  the  sur- 
vey or  patent  and  also  gives  the  tield  notes,  in  which  case 
the  latter  may  be  allowed  to  control,  if  applicable  to  the 
lands  sold."^  It  is  perhaps  implied  that  the  lands  sold  are 
thoie  of  the  defendant,  if  the  sale  was  under  execution,  or 
of  the  ward  or  decedent,  if  it  Avas  by  a  guardian,  executor,  or 
administrator,  and  hence  if  a  description  is  equally  appli- 
cable to  two  or  more  tracts,  only  one  of  which  the  defend- 
ant, ward,  or  decedent  owned,  it  will  be  held  to  refer  to 
that  one.*  It  has  been  said  it  will  be  inferred  in  support  of 
a  conveyance  made  by  an  administrator  that  it  was  intended 
to  apply  to  a  particular  lot  which  the  decedent  is  shown  to 
have  owned  in  the  town  named  in  the  deed,  that  in  the 
absence  of  proof  or  suggestion  to  the  contrary  it  will  be 
presumed  that  he  owned  no  other  lot,  and  hence  that  the 
words  of  description  will  be  applied  to  that  lot,  though  de- 
fective in  failing  to  descril)c,  or  in  inaccurately  describing, 

'  llerrick  v.  Morrill,  37  Minn.  250,  5  Am.  St.  Rep.  8-11 ;  Hermann  v. 
Likens,  90  Tex.  448;  Turner  v.  Crane,  10  Tex.  Civ.  App.  309. 

2  Kerlicks  v.  Keystone  L.  &  C.  Co.  (Tex.  Civ.  App.),  21  S.  W.  Rep. 
623. 

•'»  Minor  v.  Lumpkin  (Tex.  Civ.  App.;,  20  S.  W.  Rep.  SOO. 

^  Bray  v.  Adams.  114  Mo.  486. 

157 


^47  VOID    JUDICIAL    SALKS. 

DUO  of  its  boundaries.!  In  California,  it  was  at  one  time 
Ihouirlit  that  ajudic'iftl  sale  could  not  transfer  title  unless 
llu>  decree  directing  it  contained  a  description  of  the  prop- 
t-itv  to  i)e  sold,  so  perfect  in  itself,  that  it  could  be  under- 
siood  and  located  without  consulting  other  deeds  or  records, 
to  which  it  made  reference  for  the  purposes  of  description. 
This  view  no  longer  prevails.-^  It  is  by  no  means  essential 
that  from  a  mere  inspection  of  the  description  the  court 
should  be  enabled  to  know  what  lands  are  intended.  The 
fiacl  may  be  designated  by  some  name  not  understood  by 
the  court,  but  perfectly  familiar  to  all  persons  acquainted 
with  the  neighborhood  in  which  the  land  is  situated.  Evi- 
dence may  always  be  received  to  show  the  signification  of 
such  a  name,  or  to  prove  that  any  other  descriptive  words, 
though  apparently  meaning  less  or  uncertain,  do,  in  fact, 
designate  a  particular  tract  in  such  a  manner  that  its  iden- 
tity must  be  apparent  to  persons  to  whom  it  is  familiar. ^ 
The  deed  is  but  the  culmination  of  various  antecedent  pro- 
ceedings upon  which  it  rests  and  which  it  is  obviously  de- 
signed to  make  effective.  The  intent  of  the  officer  in  exe- 
cuting  the  deed,  where  not  sufficiently  disclosed  by  the  deed 
itself,  may  often  be  made  apparent  by  consulting  these  pro- 
ceedings. If  the  description  employed  by  him  is  ambigu- 
ous we  think  these  proceedings  may  be  inspected  for  the 
purpose  of  making  it  clear,  and  that  it  must  be  construed 
as  applying  to  the  lands  for  which  the  records  in  the  cause 
show  that  a  conveyance  should  have  been  made,  unless  to 
so  construe  it  is  to  do  violence  to  its  express  terms. ^ 
Probably  the  descriptive  words  in  a  decree  directing  a  sale 
of  real  property,   or  of  a  deed  undertaking  to  conve}'  it, 

•  Laub  V.  Buck-miller,  17  X.  Y.  (520. 

2  De  Sepulveda  v.  Baugh,  74  Cal.  468,  5  Am.  St.  Eep.  455. 

'  Freeman  on  Executions,  sec.  330;  Hockett  v.  Alston  (Ind.  T.),  58  S. 
W.  Rep.  675;  Smith  v.  Crosby,  86  Tex.  15,40  Am.  St.  Rep.  818;  Pendle- 
ton V.  Shaw,  18  Tex.  Civ.  App.  439. 

*  McGhee  v.  Hoyt,  106  Pa.  St.  516;  West  v.  Cochran,  104  Pa.  St.  482. 

158 


VOID    JUDICIAL    SALES.  §    47 

must  so  refer  to  any  other  writing  necessary  to  the  under- 
standiuo;  of  the  deed  that  no  search  is  essential  to  enable 
intending  bidders  to  determine  what  ought  to  be  sold,  or 
an  officer  executing  a  writ  of  assistance  to  know  of  what  he 
should  deliver  possession  under  ^the  deed.  Hence,  a  con- 
veyance of  a  designated  tract  of  land,  except  such  parts 
thereof  as  had  been  laid  out  in  town  lots  by  J.  E.,  and  by 
him  sold  and  conveyed  before  a  specified  date,  was  held  to 
be  insufficient  and  void.^ 

5  Bowen  v.  Wiekersham.  124  Ind.  404.  19  Am.  St.  Rep.  lOG. 


151) 


c    43  VOID    JUDICIAL    SALES. 


CHAPTER  V. 


THE    LEGAL    AND    EQUITABLE    RIGHTS    OF    PURCHASERS 
AT    VOID    SALES. 

SECTION. 

48.  Purchaser's  Eight  to  Resist  the  Payment  of  His  Bid. 

49.  Purchaser's  Right  to  Recover  Money  Paid. 

49a.  Of  the  Right  of  the  Purchaser  to  Retain  the  Property  until  Re- 
paid the  Amount  of  His  Bid. 

50.  Purchaser's  Right  to  Urge  Acts  of  Ratification  as  Estoppels  in 

His  Favor. 
50a.  Estoppel  to  Question  the  Validity  of  a  Sale. 

51.  Purchaser's  Right  to  Subrogation  Denied. 

52.  Purchaser's  Right  to  Subrogation  Affirmed,  under  Execution  and 

Chancery  Sales. 

53.  Purchaser's  Right  to  Subrogation  Affirmed  under  Probate  Sales. 

54.  Right  to  Subrogation  Whether  Exists  Only  in  Favor  of  Innocent 

Purchasers. 

55.  Purchaser's  Right  to  Aid  of  Equity  in  Supplying  Omissions  and 

Correcting  Mistakes. 

§  48.  Pui'cliaser's  Right  to  Resist  the  Payment  of  His 
Bid. — If  the  purchaser  at  a  void  execution  or  judicial  sale 
is  so  fortunate  as  to  discover  the  true  character  and  effect 
of  the  sale,  prior  to  the  actual  payment  of  the  purchase 
price,  he  will,  of  course,  seek  to  avoid  making  such  pay- 
ment. No  doubt  the  bidder  at  a  void  sale  is  entitled  to  be 
released  from  his  bid.     "The  purchaser  at  a  partition  sale 

160 


VOID    JUDTCmL    SALES.  §    48 

is  entitled   to  the  whole  title  partitiooed.     If,  from  any 
irregularities  or  defects  in  the  suit  or  in  the  proceedings, 
the  purchaser  would  not,  by  completing  his  bid  and  receiv- 
ing his  conveyance.   ])ecome  invested  with  the  whole  title 
with  which  the  court  assumed  to  deal,  then  he  will  be  re- 
leased from  his  bid.     Hence,  if  jurisdiction  has  not  been 
ac(iuired  over  one  of  the  co-tenants  the  purchaser  will  be 
released.'"^     So  in  purchases  under  execution  sales,  the  pur- 
<haser  cannot  be  compelled  to  make  payment,  if  the  proceed- 
ings are  so  defective,  in  any  respect,  that  they  cannot  devest 
the  title  of  the  judgment  debtor.-    The  same  principle  applies 
to  sales  of  the  property  of  minors  and  of  decedents.'"'    Every 
purchaser  has  a  right  to  suppose  that,  by  his  purchase,  he 
will  obtain  the  title  of  the  defendant  in  execution,  in  case 
of    execution    sales,  and  of  the  ward  or  decedent  in    the 
case  of  a  guardian's  or  administrator's  sale.     The  promise 
to    convey    this    title,  is    the    consideration,    npon    which 
his  bid  is  made.      If  the  judgment  or  order  of  sale  is  void, 
or  if,  from  any  cause,  the  conveyance,  when  made,  cannot 
invest  him  with  the  title  held  by  the  parties  to  the  suit  or 
proceedmg,  then  his  bid,  or  other  promise  to  pay,  is  with- 
out consideration,  and  cannot  be  enforced.     He  may  suc- 
<fs<fiillv  resist  any  action  for  the  purchase  money,  whether 
l)as('d    upon    the   bid  or   upon    some  bond  or  note  given  by 
hini.^      Ill  Mississippi,  however,  he  cannot  avoid  paying  the 
purchase  price  of   pcisomd  property  of   which  he  has  ob- 

1  Freeman  on  Co-tenancy  and  rarlilion,  sec.  547. 

-  Freeman  on  p]xecuti(ms,  sec.  3i:^A. 

•^  Picard  v.  Montrose  (Miss.)-  17  South.  Hep.  375. 

■•  Laiighman  v.  Thompson,  n  S.  &  M.  iJrjK;  Campbell  v.  Brown,GHow. 
Miss.)  230;  Bartee  v.  Thompklns,  4  Sneed,  (523;  Todd  v.  Dowd.  1  Mete. 
Ky.j  2S1;  liarrett  v.  Churchill,  18  IJ.  Mon.  3S7;  Wiishi.njfton  v 
McCaughan,  34  Miss.  304;  Hiddle  v.  Hill,  'A  Ala.  224;  Verdin  v.  Slociim 
71  N.  Y.  345;  (ioode  v.  Crow.  51  Mo.  212;  Hoykin  v.  Cook,  (il  Ala.  472: 
i'.iirns  V.  Ledbetter,  .56  Tex.  2S2;  Dodd  v.  Neilson,  HO  X.  Y.  243;  Threfl 
V.  Fritz,  7  111.  App.  55;  Short  v.  Porter,  44  Miss.  533:  note  to  Burns  v. 
flamilton,  70  Am.  Dec.  580. 

(11)  101 


^     (H  VOID    .II'DICIAL    SALES. 

liiinrd.   :m(l    still     ivtains,    possession     by    virtue    of     the 

snlc' 

Tho  distiiu'lion  between  void  sales  and  defective  titles 
inii>t  bo  kept  in  view,  to  avoid  any  misapprehension  of  the 
rights  of  one  who  has  purchased  at  an  execution  or  judicial 
saU\  without,  in  fact,  obtaining  anything.  If  he  obtains 
notliino  because  of  a  defect  in  the  proceedings,  he  can  de- 
feat an  action  for  the  anu)unt  of  his  bid.  If,  on  the 
other  hand,  the  proceedings  are  perfect,  but  the  de- 
fendant, or  ward,  or  decedent,  had  no  title  to  be  sold 
or  conveyed,  the  purchaser  is  nevertheless  bound  by 
his  bid,  if  he  has  permitted  an  order  of  contirmation 
to  be  entered  against  him,  without  objection;  or,  if  not- 
withstanding his  objections,  such  order  has  been  entered 
and  remains  in  force.  In  some  of  the  States  caveat  emptor 
is  the  rule  of  all  execution  and  judicial  sales.  Each  bid  is 
made  for  such  title  as  th«  defendant,  ward  or  decedent  nuiy 
have,  and  is,  therefore,  binding,  whether  either  had  title  or 
not.-  "But  the  better  rule  is  that,  in  equity  sales,  the  pur- 
chaser is  entitled  to  receive  a  title  free  from  equities  and 

'  WHshiugton  v.  MeCaughan,  34  Miss.  304;  Martin  v.  Tarver,  43  Mi-s. 
517;  Jaggers  v.  Griftln,  43  Miss.  134. 

■  Freeman  on  Co-tenancy  and  Partition,  sec.  547 ;  Osterberg  v.  Union 
Trnst  Co.,  93  U.  S.  424 :  McManns  v.  Tveith,  49  111.  389;  Short  v.  Porter, 
44  Miss.  .^)33:  Bassett  v.  Locliard,  00  111.  1(J4;  Boykin  v.  Cook,  (U  Ala. 
47-2;  England  V.  Clark.  4  8can).48G;  Boro  v.  Harris,  13  Lea,  36;  Holmes 
V.  Shafer,  78  Ill..')78:  Dunn  v.  Frazier,  8  Blackf.  432;  Kodgers  v.  Smitli, 
2  ind.  .")2G;  Dean  v.  ^lorris,  4  G.  Greene,  312;  Islay  v.  Stewart,  4  D.  & 
B.  100:  Kicbardson  v.  Vicker,  74  N.  C.  278;  Rollins  v.  Henry,  78  N.  C. 
342;  Pinkerton  v.  Harrell,  100  Ga.  102,  71  Am.  St.  Rep.  242;  Frost  v. 
Atwood,  73  Mich.  07,  lOAm.St.  Rep.  560;  Pope  v.Benster.  42  Neb.  304, 
47  Am.  St.  Rep.  703;  Long  v.  McKissick,  50  S.  C.  228.  The  rule  was 
applied  against  purchasers  at  probate  sales  in  WortUington  v.  Mc- 
Koberts,9  Ala.  297:  .Jennings  v.  Jenning's  Admr., /cL  291;  Owen  v. 
Slatter,  20  Ala.  517,  02  Am.  Dec.  745;  Byrd  v.  Turpin,  62  Ga.  591;  Col- 
bert V.  Moore,  64  /ci.  .502;  Tilley  v.  Bridges,  105  111.336;  London  v. 
l^obertson,  5  Blackf.  276;  Cogan  v.  Frlsby,  36  Miss.  185;  Thompson  v. 
Munger,  15  Tex.  523,  05  Am.  Dee.  170;  Burns  v.  Hamilton,  33  Ala.  210. 
70  Am.  Dec.  570;  .Jones  v.  Warnock.  07  Ga.  484:  King  v.  Gunnison.  4 
Pa.  St.  171. 

1(52 


VOID    JIDICIAL    SALES.  §    4>5 

incumbrances  of  which  he  had  no  notice ;  and  if,  l)V  the  sale, 
he  will  not  receive  such  title,  he  will  not,  on  his  nuikini>- 
objection,  l)e  compelled  to  complete  his  purchase,  but  will 
be  released  therefrom,  unless  the  title  can  be  made  good,  or 
other  just  relief  awarded."'^  Therefore,  in  everv  case  in 
which  a  sale  is  made  subject  to  its  confirmation  by  the  court, 
the  |)urehaser  should  take  i)ains  to  inform  himself  of  every 
matter  which,  if  known,  wouH  leail  him  to  seek  release  from 
his  bid,  whether  consisting  of  a  defect  in  the  title  or  a  lien 
on  the  property,  and  should  urge  such  matter  when  discov- 
ered asaground  for  refusing  confirmation  of  the  sale.-  When 
the  sale  has  been  made  pursuant  to  a  decree  in  chancery,  and 
the  purchaser  seeks  relief  l)y  resisting  its  confirmation,  he 
is  entitled  to  have  applied  in  his  favor  the  general  principles 
of  equity  jurisprudence,  and  to  be  released  from  his  bid, 
when  to  do  otherwise  would  be  to  treat  him  in  an  uncon- 
scionable numner.  With  respects  to  defects  in  the  title  to 
the  ))ra|oerty  sold,  "the  purchaser  will  be  released,  and  any 
])ayment  nunle  by  him  and  remaining  within  the  control  of 
the  court  will  be  returned  if  the  condition  of  the  title  is 
such  that  he  would  not  be  rccjuired  to  Mcce|)l  it  were  the 
contract  })etween  him  and  a  i)rivate  individual.  The  cotirt 
is  the  vendor,  and  it  will  not  enforce  a  contract  in  its  own 
favor,  of  which  it  would  refuse  to  decree  the  execution,  if 
the  vendor  were  a  private  person.''  Hence,  confirmation 
can  be  refused  and  the  ])urchaser  released,  though  the  sale 
is  not  absolutely  void  or  the  title  necessarily  defective.  A 
|)urcliMscr  at  a  judicial,  c(|ually  with  a  purchaserat  aprivate. 
>ale  is  entitled  to  a  marketable  title,  lie  will  not  be  released 
ix'cause  of  a  mere  possibilit)'  or  of  a  remote  or  other  ini- 
prol)able   contingenc}',   if  the  court,    in    the    exercise  of   a 

'  Note  t(i  Burns  v.  lliiinilton,  70  Am.  Dec.  r)7."),  citino^  .Scott  v.  IJentel. 
•-';{  Graft.  1  ;  Holivar  v.  Zeigler.  0  S.  C.  2S7 :  Moniiglian  v.  .Small,  (J  .s.  ('. 
177;  Kostenbader  v.  .S|)ott!i,  SO  I'a.  St.  JISO;  Kdncy  v.  Kdm-y,  8(J  N.  ('. 
SI  ;  Monaniue  V.  .Monaniuc,  80  N.  Y.  820;  llimtinjr  v.  Walter.  ^^^^  Md.  (10. 

■-'  Hammond  v.  Cliainljeriain,  .jS  Xeb.  -It.'),  70  Am.  St.  Ifcp.  lO'i. 

■  Frt'i'iiian  on  ExciMidons.  sec.  'AOik-. 

k;;; 


^    4^  VOID    JUDICIAL   SALES. 

sound  (liscret  ion,  thinks  proper  to  hold  him  to  his  bid;'  but 
ordinarily  it  will  release,  when  the  title  is  not  marketable, 
to  the  same  extent  and  under  the  same  circumstances  under 
which  it  would  refuse  to  direct  the  specific  performance  of 
:i  private  sale.-  A  purchaser's  claim  to  relief  is  dependent 
upon  his  bid  being  nuide  in  the  belief  that  the  sale  was  of  a 
perfect  title.  If  he  knew  of  the  defect,  or  from  pursuino- 
iu(|uiries  suggested  by  the  pleadings  or  notice  of  sale  would 
have  known  of  it,  he  is  not  entitled  to  l)e  released.^^  This 
remains  true,  though  false  statements  were  made  at  the  sale, 
if  he  was  not  deceived  hy  them.  Neither  the}-  nor  defects 
in  the  title  of  which  he  was  aware  constitiltes  any  ground 
for  releasing  him  from  his  bid.* 

The  confirmation  is  conclusive  on  the  purchaser,  and  after 
that  he  is  precluded  from  objecting  that  the  title  was  im- 
l)erfect  or  incumbered,  and  thus  avoiding  the  payment  of 
his  bid.^  This  rule  nuiy  not  be  applicable  where  the  sale  is 
made  by  the  court,  and  the  purchaser,  instead  of  being  sued 
in  an  independent  action  for  the  amount  of  his  Lid,  is 
))r()ught  before  the  court  l)y  motion  or  other   proceeding 

'Cainbreling  v.  Pintor.  125  X.  Y.  010. 

2  Crouter  v.  Cronter,  133  N.  Y.  55;  Heller  v.  Cohen,  154  X.  Y.  299. 

•■' Eccles  V.  TimmoDS,  95  X.  C.  540;  McKernan  v.  Xetf.  43  Ind.  503; 
J.edyard  v.  rhillips.  32  Mich.  13;  Graham  v.  Bleakie,  2  Daly,  55;  Ili^gs 
V.  Powell,  66  X.  Y.  193;  Fryer  v.  Rockefeller,  63  X.  Y.  298;  Young  v. 
McClung,  9  Gratt.  336. 

^  Ee  Leard's  Estate,  164  Pa.  St.  435. 

•''  Williams  v.  Glenn's  Admr.,  87  Ky.  87,  12  Am.  St.  Rep.  481;  Oster- 
berg  V.  Union  Trust  Co.,  93  U.  S.  424;  Dresbach  v.  Stein,  41  Ohio  St. 
70;  Mechanics'  S.  &  B.  Assn.  v.  O'Connor,  29  Ohio  St.  651;  Barron  v. 
Mullen,  21  Minn.  374;  Holmes  v.  Shaver,  78111.578;  Thomas  v.  David- 
son, 76  Ya.  344;  Hlekson  v.  Rucker,  77  Ya.  135;  Long  v.  Weller,  29 
(Jratt.  347;  Tbrelkelds  v.  Campbell,  2  Gratt.  198,  44  Am.  Dec.  384; 
("ipehart  v.  Dowery,  10  W.Va.l30;  Farmers'  Bank  v.  Peters,  13  Bush, 
591;  Housley  v.  Lindsey,  10  Heisk.  651;  Anderson  v.  Foulks,  2  H.  &  (J. 
316;  Farmers'  Bank  v.  Martin,  7  Md.  342,  61  Am.  Dec.  350;  Bassett  v. 
Lockard,  60  111.  164;  Cashion  v.  Fania,  47  Mo.  133;  Richardson  v.  Butler, 
S2Cal.  174, 16  Am.  St.  Rep.  101;  Watson  v.  Tromble,  33  Xeb.  368,  29 
Am.  St.  Rep.  492;  Deputronny  v.  Young.  143  U.  S.  241. 

164 


VOID    JUDICIAL    SALKS.  ^    -48 

there  instituted  to  obtain  some  order  directing  him  to  com- 
ply with  hi.s  contract  of  purchase.  In  "Williams  v.  Glenn  ^ 
the  court,  where  a  purchaser  was  ruled  to  show  cause  why 
he  should  not  pa}'  bonds  given  by  him  at  his  bid  at  a 
commissioner's  sale,  refused  to  release  him,  though  it  :»))- 
peared  that  he  had  acijuired  no  title  whatever  b}-  the  sak-, 
but  said  that  the  rule  M'as  otherwise  in  such  cases  when  it 
appeared  that  the  purchaser  was  induced  to  make  his  jnu- 
chase  by  a  misrepresentation  of  the  i)erson  making  the  sah^ 
as  to  the  condition  of  the  title,  and  the  falseness  of  tlic 
representation  could  not  have  been  discovered  with  reasonable 
(Iib's:ence  until  after  the  contirmation.  Courts  of  chancerv 
proceed  to  a  great  extent  upon  the  principh^  that  the  parties' 
to  the  suit  and  the  purchaser  are  all  within  its  jurisdiction, 
and  remain  subject  to  such  orders  as  it  sees  ])roper  to  make, 
thougii  after  a  great  lapse  of  time.  Such  courts  sometimes. 
even  after  the  payment  of  the  money  and  the  conveyance  of 
t  he  pro})erty,  bring  the  parties  before  them  upon  suggestions 
of  fraud,  misapprehension,  surprise,  or  other  ground  of 
eijuitable  relief,  and  direct  the  sale  to  be  vacated.-  lielief 
may  bo  granted  on  the  ground  of  the  faikire  to  bring  before 
the  court  some  necessary  party  to  the  suit  in  which  the  sale 
was  made.'  Speaking  of  the  vacating  of  a  sale  after  the 
entry  of  an  order  of  cc^nHrmation,  the  court  of  appeals  of 
\'irginia  said:  "It  is  by  no  means,  therefore,  matt(rr  of 
discretion  with  the  court  to  rescind  a  sale  which  it  has  once 
rontirmed,  nor  is  the  si*le  to  be  rescinded  for  mere  inade- 
•  |ua(ty  of  price,  or  for  an  increase  of  price  alone;  but  some 
sp<!tial  ground  must  be  laid,  such  as  fraud,  accident,  mistake, 
or  misconduct  on  the  [)art  of  the  purchaser,  or  other  person 

'  87  Ky.  87,  12  Am.  Sf.  Rep.  4G1. 

2  Tripp  V.  Cook,  •_>(;  Wend.  143;  (Jollier  v.  Whipple.  i;J  Wenrl.  JlM  : 
Xationnl  l>ank  v.  Sprague,  21  N.  J.  V.i\.  -J.")?;  Siiiilb  v.  AU«^n.  22  .N.  .1. 
Erp  572;  Oawicy  v.  Leonard,  28  N.  J.  Eq.  -Itw;  Campbell  v.  Gaulner.  1 1 
N'.  .1.  Kq.  423;  Watson  v.  IJircti.  2  Ves.  -Jr.  51. 

«  Meddis  v.  Kcniey,  08  Ky.  432. 


^     ^1)  V(>II)    .UDICIAL    SALKS. 

<onnootcd  with  Hie  sale,  \vlii''h  has  worked  injustice  to  the 
party  ooinphiiiiing.  Aftei'  contirmution,  the  purchaser  at  a 
judicial  sale  is  as  much  entitled  to  the  benefit  of  his  purchase 
M>  a  purchaser  in  pais,  and  the  sale  in  the  one  case  can  be 
set  aside  onlv  on  such  irrounds  as  Avould  be  sufficient  in  the 
olluT.  There  is  no  i)iinciplc  on  which  any  distinction  be- 
Iwfcn  the  two  classes  of  cases  can  be  drawn,  and  if  there  be 
:iiivlhinu'  in  the  opinion  of  the  court  in  Merchants'  Bank  v. 
Campbell,  75  Xn.  4.5."),  which  can  be  construed  as  holding  a 
<'ontrary  doctrine,  the  proposition  has  been  overruled  by 
subs(M|ucnt  decisions."  ^ 

§  4!».  The  Purchaser's  Right  to  Recover  Back  Money 
Paid. — Whoever  pays  out  money  on  account  of  a  purchase 
made  at  a  void  sale,  parts  with  a  valuable  consideration,  for 
which  he  acquires  nothing.  The  question  then  arising,  is: 
Has  the  purchaser  an}'  remedy?  and,  if  so,  what  is  the  rem- 
edy, and  to  what  cases  may  it  be  applied  with  success. 
AVhcrc  the  plaintiff  is  the  purchaser,  he  may,  in  most  States, 
upon  failure  of  his  title,  in  effect  vacate  the  apparent  satis- 
t:uti()n  produced  by  the  sale,  and  obtain  a  new  execution.- 
T(»  justify  the  application  of  this  rule,  the  failure  of  title 
must  be  com[)lete,  and  the  plaintiff  must  be  denied  this  relief 
if  the  defcndiint  had  some  estate  or  interest  in  the  property 
subject  to  execution,  though  it  proved  to  be  less  than  the 
jdaintiff  believed  at  the  time  of  the  making  his  bid.^ 

If  the  title  fails  through  defects  in  the  proceedings,  aris- 
ing from  the  ueglect  or  misconduct  of  the  sheriff,  the 
jiurchaser  can  sustain  an  action  on  the  case  against  that 
officer.^  If  the  sale  of  the  property  of  a  decedent,  minor, 
or  inc(unpctent  person  is  made,  but  is  subsequently  vacated, 

'  Virginia,  etc..  I.  Co.  v.  Cottrell.  85  Va.  857,  17  Am.  St.  Rop.  108. 

-  Freeman  on  Executions,  sec=.  54  and  352;  Sargent  v.  Sturm,  23  Cal. 
3.V.i,  83  Am.  Dec.  118;  Piper  v.  El  wood,  4  Den.  1G5;  Adams  v.  Smith,  5 
Cow.  280;  Watson  v.  Reissig,  24  III.  281. 

3  Conce  V.  McCoy.  101  Tenn.  .587,  70  Am.  St.  Rep.  714. 

*  Sexton  V.  Nevers,  20  Tick.  451,  32  Am.  Dec.  225. 

IGG 


VOID    JUDICIAL    SALES.  §    49 

or,  if  for  unv  reason  the  purchaser  is  entitled  to  be  released 
therefrom,  he  may  recover  the  amount  of  his  hid  from  the 
executor,  administrator,  or  guardian  to  whom  it  was  paid, 
and  in  whose  custody  it  remains.^  Where  a  purchase  is 
made  under  a  decree  in  equit}',  and  such  decree  is  reversed 
for  a  jurisdictional  defect  in  the  proceedings,  or  where  the 
title  fails  because  the  grantee  of  a  mortgagor  was  not  a  party 
to  a  foreclosure,  the  plaintiff  has  the  right  to  prosecute 
further,  proceedings.  In  the  case  first  named,  he  may  have 
the  process  properly  served,  and  thus  give  the  court  juris- 
diction to  proceed.  In  the  second  named  case  he  maj'  '^PP^.v 
to  the  court,  have  the  sale  vacated,  the  satisfaction  cancelled, 
and  then,  bv  supplemental  bill,  bring  in  the  j)roper  parties, 
t'.nd  have  the  properly  resold.  In  cither  case  the  purchaser 
may,  bv  applying  to  the  court  in  the  original  suit,  have  the 
])roceedings  conducted  for  his  benefit,  though  in  the  name 
of  the  original  j)laintiff.'-  In  New  York  and  Tennessee,  if 
the  proceedings  arc  utterly  void,  the  purchaser  ma}^  recover 
from  the  plaintiff  the  amount  paid  upon  the  hitter's  judg- 
ment,' when  the  i-emedy  by  motion  no  longer  exists  in  the 
original  action,  the  plaintiff  may  be  allowed  to  maintain  a 
second  suit,  in  which  he  mav  include  v.ith  the  parties  in  the 
first  suit  all  necessary  parties  omitted  therefrom.  Hence, 
if  a  judgment  is  entered  against  a  husband  foreclosing  a 
mortgage  upon  a  homestead,  to  which  foreclosure   his  wife 

J  McKay  v.  Coleman,  So  .Mich.  (iO;  Jle  Dickerson,  111  X.  C.  lOS. 

-  I'oofgs  V.  Ilaigrave,  l(i  Cal.  .').")9,  7(5  Am.  Dee.  illil;  IJnrton  v.  Lies,  21 
<  al.  S7;  Johnson  v.  Robertson.  34  Md.  165;  Cook  v.  Toiimbs.  3(5  Mis^. 
ii-^.");  Iludgin  v.  Iliidgin,  (>  (iratt.  320,  52  An).  Dec.  VIA.  See  alto  Scott 
V.  Dunn,  1  D.  &  B.  Eq.  425. 

'  <  'hiipman  v.  Brooklyn,  40  N.  Y.  372;  Schwingcr  v.  llickok,  .53  X.  Y. 
•Js(i:  Henderson  V.  Overton,  2  Yerg.  304,  24  Am.  Dec.  402.  The  prin- 
ciple upon  which  these  cases  i)rofess  to  proceed  is,  that  a  party  may 
recover  moneys  paid  where  there  is  a  total  failure  of  consideration. 
This  i)rinciple  is  sullicienlly  supported  by  the  autiiorities  (Moses  v.  iMc- 
I'arlane,  2  ISurr.  1000;  lUieel  v.  llices.  25  X.  Y.  2S0;  Kingston  Bank  v. 
KItinge,  40  N.  Y.  301.  loo  Am.  ]>ec.  510),  but  we  doubt  its  applicability 
to  execution  sales. 

167 


^    41)  VOID    JUDICIAL    SALK8. 

is  no!  a  party,  (he  plaintiff  may,  after  i)urchasing  at  a  .^^alc 
imdor  such  f()reol<»siire,  if  the  homestead  was  subject  to  the 
uu)rt"a<Te,  maintain  a  second  suit  to  foreclose  it,  and  thereby 
♦'ffeotivoly  enforce  it  against  the  wife.' 

In  Kentucky,  Missouri,  Indiana,  Illinois  and  Texas,  if  the 
(Icfondant  in  execution  had  no  title,  he  may  be  compelled, 
by  proceedings  in  equity,  to  reimburse  the  purchaser  for  the 
Minount  contributed  by  nn^'ins  of  the  purchase,  to  the  satis- 
faction of  the  judgment.-  But  we  think  the  better  rule  i.-^ 
that,  unless  proceeding  upon  the  ground  of  fraud  or  misrep- 
resentation, or  some  other  well  known  ground,  a  purchaser 
at  an  execution  sale  cannot,  by  any  independent  action, 
recover  of  either  of  the  parties  the  amount  of  his  bid.-^  Such 
an  action  is,  necessarily,  founded  upon  a  mistake  of  law. 
The  purchaser  is  sure  to  base  his  claim  upon  the  fact  that 
h<^  mistook  the  legal  effect  of  the  proceedings  in  the  case, 
or  of  the  defendant's  muniments  of  title.  And  it  is  well 
known  that  a  mistake  of  law  is  not  a  sufficient  foundation  for 
relief  at  law  or  in  equit}'.  The  rule  of  caveat  emptor  un- 
(|uestionably  ai)plies  to  execution  sales;  and  we  know  not 
how  this  rule  can  co-exist  with  another  rule  requiring  one  of 
the  parties  to  indenuiify  the  purchaser  in  the  event  of  a 
failure  of  the  title.      In  a  few  of  the  States  purchasers  have 

'  Brackett  v.  Banegass,  IIG  Cat.  278,  58  Am.  St.  Rep.  16J. 

-'McGhee  v.  Ellis,  4  Litt.  245,  10  Am.  Dec.  124;  Muir  v.  Craig,  3 
liiackf.  293,25  Am.  Dec.  Ill;  Warner  v.  Helm,  1  Gilm.  220;  Price  v. 
IJoyd,  1  Dana,  43(5;  Hawkins  v.  Miller,  26  Ind,  173;  Preston  v.  Harrison, 
i*  Ind.  1 ;  .Tones  v.  Henry,  3  Litt.  435;  Dunn  v.  Frazier,  8  Blackf.  432: 
Pennington  v.  Clifton,  10  Ind.  172;  Ricbmond  v.  Marston,  15  Ind.  134: 
•hilian  v.  Bell,  2(j  Ind.  220,  89  Am.  Dec.  4G0;  Howard  v.  Xorth.  5  Tex. 
290,  51  Am.  Dec.  7(59;  Arnold  v.  Cord,  16  Ind.  177;  Taylor  v.  Connor,  7 
tnd.  115;  Wilcbinsky  v.  Cavender,  72  Mo.  192;  Burns  v.  Ledbetter.  .5(> 
Tex.  282;  Reed  v.  Crosthwait,  0  Iowa,  219,  71  Am.  Dec.  406. 

^  Branham  v.  San  Jose,  24  Cal.  585;  Boggs  v.  Hargrave,  16  Cal.  559. 
76  Am.  Dec.  561;  Salmondv.  Price,  13  Ohio,  368,42  Am.  Dec.  204;  Laws 
V.  Thompson,  4  .Jones,  104;  Halcombe  v.  Loudermilk,  3  Jones,  491 :  The 
Monte  Allegre,  9  Wheat.  616;  Burns  v.  Hamilton,  33  Ala.  210:  Lewark 
V.  Carter,  117  Ind.  206, 10  Am.  St.  Rep.  40. 

108 


VOID    .TUDICIAL    SALES.  §    iiht 

been  given  a  statutory  rcmed}'.^  The  purchaser  at  a  void 
execution  sale  may,  b}'^  the?  payment  of;  his  bid,  wholly  or 
partly  discharge  some  lien  or  claim  on  the  property  pur- 
chased. The  question  then  arising  is  this :  Has  he  the  right 
to  hold  the  property  until  the  amount  thus  paid  is  refunded 
to  him?  The  consideration  of  this  question  is  reserved  for 
a  subsequent  section.- 

§  49«.  Of  tbe  Kiy:1it  of  the  Purchaser  to  Retain  the 
Property  Until  Repaid  the  Amount  of  His  Bid. — Where 
relief  is  sought  against  u  void  or  voidaI)le  sale  by  motion  in 
the  court  under  whose  order  or  process  it  was  made,  or  by 
independent  suit  in  equity,  the  court  may  doubtless  refuse 
to  grant  relief  unless  the  complainant  or  moving  party  will 
do  ecjuity,  and  therefore,  if  the  proceeds  of  the  sale  were 
received  by  him  or  his  predecessor  in  interest,  or  Avere  ap- 
plied to  discharge  some  valid  lien  or  claim  against  the 
pro})erty,  he  may  be  required  to  reimburse  the  purchaser  as 
a  condition  precedent  to  the  setting  aside  of  the  sale  or  the 
granting  of  the  other  relief  sought.'  This  involves  no 
more  than  a  proper  a[)plication  of  the  familiar  maxim  that 
he  who  seeks  equity  must  do  equity.  When,  on  the  other 
hand,  no  relief  is  sought  by  suit  or  motion,  but  a  party  in 
Avhom  the  legal  title  remains  because  the  sale  was  void, 
seeks  to  recover  possession  of  the  property  bj^  an  action  at 
law,  it  is  dithcult  to  understand  how  this  maxim  of  equity 
can  be  made  available  for  the  protection  of  the  purchaser, 
unless  he,  by  a  cross-bill  or  cotnplaint,  where  the  court  is 
authorized  to  exercise  jurisdiction  in  e(iuity,  invokes  that 
jurisdiction,  and,  in  effect,  demands  that  the  })laintiff  ))c 
enjoined  from  proceeding  until   Cipiit}'  is  done.      Nevcrthc- 

1  C.  «.'.  J*,  of  Cal.,  sec.  70S;    ]Ialconil>e  v.   I.oudcrmilk.  :5  .loncs.  4'.tl  : 
Chambers  v.  Cochran,  18  Iowa,  1(50. 

2  Ste?ec8.  51  53. 

'Nivel  V.  Carson,  47  Ark.  421;  Fishery.  Bush.  13:J  Ind.3ir.;  lirown 
V.  Lane,  IJ)  Tex.    20.'»;  Morton  v.  Welborn,  21  Tex.  773;  llerndon  v 
IJice,  21  Tex.  ■l.">7. 

169 


^    ;,()  AOII)    .riTDICIAL    SALES. 

Ifss.  we  undor^taiul  the  decisions  in  scvenil  of  the  States  to 
.itlirin  tii:it  a  defiMuhint  in  an  action  of  ejectment  may  show 
in  his  (h'fense  that  he  purchased  the  property  at  an  execu- 
tion or  judicial  sale,  or  that  the  amount  of  his  bid  was  ap- 
phed  to  the  extinction  of  some  valid  claim  or  lien,  and  such 
showing  being  ,made,  the  court  Avill  not  render  judgment 
for  possession,  though  the  sale  was  void,  until  the  pur- 
<haser  has  been  reimbursed  the  amount  so  paid.^  It  is 
not  within  the  power  cither  of  the  courts  or  of  the  legisla- 
jmc  to  validate  void  sales  unless  the  judgment  debtor  within 
M  time  specified  pays  the  purchaser  the  amount  of  his  bid 
and  interest  and  his  costs  in  defending  his  title.  A  statute 
of  New  York  undertaking  to  do  this  was  declared  unconsti- 
tutional and  void  on  the  ground  that  the  pre-existing  laws 
were  sutKcient  to  afford  the  purchaser  every  reasonable 
remedy  to  which  he  had  any  equitable  claim,  and  that  it  is 
not  "competent  for  the  legislature  to  deny  for  any  cause  to 
a  party  who  has  been  illegally  deprived  of  his  property  ac- 
cess to  the  constitutional  courts  of  the  State  for    relief."^ 

§  50.  Ratification  of  Void  Sales  by  the  Acts  of  the  Parties 
in  Interest. — As  a  general  rule,  a  confirmation  or  ratilica- 
tion  cannot  strengthen  a  void  estate.  '"For  confirmation 
may  make  a  voidable  or  defeasible  estate  good,  but  cannot 
operate  on  an  estate  void  in  law.""-^  If  this  rule  be  one  of 
universal  application,  then  there  can  be  no  necessity  for 
considering  the  question  of  ratification  in  connection  with 
void  judicial  sales.     But  this  is   one  of  those  rules  which 


>  Robertson  v.  Bradford.  73  Ala.  116;  Meher  v.  Cole,  50  Ark.  301.  7 
Am.  .St.  Rep.  101;  Wihnore  v.  Stetler,  137  Ind.  127,  4:)  Am.  St.  Rep.  1G1»: 
Diifour  V.  C  imfranc,  11  Mart.  615,  13  Am.  Dec.  360;  Schafer  v.  Causey, 
76  Mo.  365;  Howard  v.  North,  5  Tex.  206,  51  Am.  Dee.  789;  .Tohnson  v. 
<'ildvvell,  38  Tex.  218;  Northcraft  v.  Oliver,  74  Tex.  162;  Kendrick  v. 
Wbeelor,  85  Tex.  217;  Halsey  v.  Jones.  80  Tex.  488;  Davis  v.  Gaines, 
104  U.  S.  880. 

2  Gilman  v.  Tucker,  128  X.  Y.  100,  26  Am.  St.  Rep.  404. 

■^  Boiivier's  Law  Die,  title  "Contirmation."' 

170 


VOID    .Il'DKIAI.    SALKS.  §    M) 

'.\vo  ^o  limited  by  exceptions,  that  the  eiremnstances  to 
which  it  may  be  applied  are  scarcely  more  numerous  than 
those  from  which  its  application  must  be  withheld.  There 
can  now  be  scarcely  any  doubt  that  void  judicial  sales  are 
within  the  e.\cei)tions,  and  are  unaffected  by  the  rule,' 
These  sales  may  be  ratitied  either  directly  or  by  a  course  of 
conduct  which  es(()i)s  the  party  from  denyinir  their  validity. 
Til  us,  if  the  dcfeiulant  in  execution,  after  a  void  sale  of  his 
property  has  been  made,  claims  and  receives  the  surplus 
proceeds  of  the  s:il<',  with  a  full  knowledi>e  of  his  rights, 
his  act  nuist  tlicrcafler  be  treated  as  an  irrevocable  con- 
tiruuition  of  the  sale.-  In  a  case  decided  in  Pennsylvania, 
a  judgment  was  recover«d  against  the  administrator  of  an 
estate.  The  heirs  of  the  decedent  were  not  parties  to  the 
action  in  which  this  judgment  was  recoveretl.  and  were, 
tlierefore,  under  t lie  laws  of  that  State,  unaffected  by  it. 
I'nder  this  judgment .  writs  were  issued,  and  laiuls  of  tlu^ 
decedents  levied  upon,  conck'mned  and  sold.  They  pro- 
(hiced  funds  luoi-e  than  suthcient  to  satisfy  the  judgment. 
Tile  surplus  wa<  paid  to  the  heirs.  One  of  the  (hiughters 
liaving  brought  ejectment  for  the  lands  the  suprenie  court, 
ill  diseussing  and  determining  her  rights,  said:  "She  was 
])erfectly  accjuainted  with  the  /"err/  that  she  had  not  been 
served  with  process  to  make  her  a  party  to  the  judgment  on 
which  the  sale  was  made,  and  that  she  had  not  voluntarily 
made  herself  a  party  to  that  proceeding  Avithout  process ; 
and  there  i-;  no  e\i(h'iice  to  repel   the  presumption  that    she 

'  Miiple  V.  Kii8<,!irt.  Tui  i'a.  St.  :U8.  '.)\  Am.  Doc.  211;  .lolinson  v.  Frit/, 
44  Pa.  St.  440:  Deford  v.  .Mercer,  24  Iowa,  1 18,  02  Am.  Dec.  4(50;  Parsley 
V.  Hays.  17  Iowa,  310;  Johnson  v.  Cooper,  50  Miss.  (>0S. 

-Stroblev.  Smith,  8  Watts.  280;  llerden  v.  Oiibie,  2  La.  Ann.  142; 
Sittig  V.  Morgan,  5  La.  Ann.  .")74;  McLeod  v.  Johnsoa,  28  Miss.  374 ; 
Southard  v.  Perry,  21  Iowa.  488.  80  Am.  Dec.  087;  State  v.  Stanley.  14 
lnd.4()0;  Crowell  v.  McConkey.  5  Ta.  St.  1U8:  Huffman  v.  Gaines,  47 
Ark.  227;  Fallon  v.  Worthington,  13  Colo.  fj^O.  Iti  Am.  St.  Kep.  231 ; 
Hazel  V.  Lvden,  .">1  Kan.  233.  :!7  Am.  St.  R"p.  273:  IJrewer  v.  Nash.  10 
Jl.  I.  488,  27  .Vm.  St.  Kep.  740. 

171 


$  :jo 


VOlI>    .11  niClAL    SALKS. 


was  o(iu:»llv  well  avciuaintocl  with  the  rules  of  law  which 
entitled  her  to  clisircgard  a  sale  made  under  such  a  jutlg- 
nienl,  as  havin":  no  operation  whatever  upon  her  rights, 
unless  she  did  some  act  which,  on  principles  of  equity  and 
••()innu)n  honesty,  might  estop  her  from  imi)eaching  it.  As 
she  was  not  a  cU'fendant  in  the  execution  she  had  no  right, 
in  (liat  character,  to  receive  any  part  of  the  money,  after 
pavuuMit  of  the  creditor's  chiim.  Her  only  title  to  the 
nujuev  depended  upon  the  effect  of  the  proceedings  in  de- 
vesting her  estate  in  tiie  land,  and  converting  it  into  money, 
by  passing  her  title  to  the  purchasers.  Ui)on  this  ground 
aK)ne  could  she  make  any  claim  to  the  money,  in  law  or 
©(piitv.  The  receipt  of  her  share  of  the  money  was,  there- 
fore, an  affirnuition  that  her  title  had  passed  to  the  pur- 
chasers by  virtue  of  the  sheriff's  sale;  and  she  cannot  be 
received  to  nuike  a  contrary  allegation  now,  to  the  injury 
of  those  who  paid  their  money  on  the  faith  of  the  convey- 
ance. >\'hcre  a  sale  is  made  of  land,  no  one  can  ])e  per- 
mitted to  receive  both  the  money  and  the  land.  Even  if 
the  vendor  possessed  no  title  whatever  at  the  time  of  the 
sale,  the  estoppel  Avould  operate  upon  a  title  subsequently 
acquired.  It  was  held  by  this  court,  at  the  late  sitting  in 
ilarrisburg,  that  'equitable  estoppels  of  this  character 
api)ly  to  infants  as  well  as  adults,  to  insolvent  trustees  and 
guardians  as  well  as  persons  acting  for  themselves,  and 
have  place  as  well,  Avhere  the  proceeds  arise  froUi.a  sjUe  />// 
aulhovifi/  of'  fair,  as  where  they  spring  from  f/te  act  of  Hip 
party S^  The  application  of  this  i)rinciple  does  not  depend 
upon  any  supposed  distinction  between  a  void  and  voidable 

'Commonwealth  v.  Shuman's  Admr.,  (5  Hair.  3J(j;  McPherson  v. 
Cunliff,  11  S.  &R.426,  14  Am.  Dec.  642;  Wilson  v.  Bigger,  7  W.  &  S. 
Ill;  Stroble  v.  .Smith,  8  Watts,  280;  Benedict  v.  Montgomery,  7  W.  & 
.S.  238,  43  Am.  Dec.  230;  Martin  v.  Ives,  17  Serg.  &  R.  304;  Crowell  v. 
McConkey,  .0  Barr,  1C8;  Hamilton  v.  Hamilton,  4  Barr,  193;  Dean  v. 
Connelly,  G  Barr,  239;  Robinson  v.  Justice,  2  Pa.  Rep.  ]9,  21  Am.  Deo- 
407;  Share  v.  Anderson,  7  Serg.  &  R.  48,  10  Am.  Dec.  421 :  Furness  v' 
Ewing,  2  Barr,  479;  Adlum  v.  Yard,  1  Rawle,  103.  18  An.  Dec.  0U8. 

172 


VOID    JUDICIAL    SALES.  §    50 

side.  The  receipt  of  the  money,  with  the  knowledge  that 
the  purchaser  is  paying  it  upon  an  understanding  that  he  is 
purchasing  a  good  title,  touches  the  conscience,  and,  there- 
fore, binds  the  right  of  the  party  in  one  case  as  well  as  the 
other. '^^  Perhaps  it  is  not  essential  that  the  defendant  in 
execution  should  have  directly  received  any  part  of  the  pro- 
ceeds of  the  sale.  If  he  knows  of  the  sale,  makes  no  objec- 
tions thereto,  and  i)erniits  the  proceeds  to  be  applied  to  the 
payment  of  his  debts,  he  will,  at  least  in  PiMiiisylvania.  be 
precluded  from  denying  its  validity.-  The  same  principle 
should  be  applied  to  one  who  activelv  participates  in  a  sale, 
as  bv  being  one  of  the  bidders  and  making  no  claim  at  the 
time  of  the  sale  that  it  was  irregular  or  unauthorized.-^ 

If  lands  are  sold  at  a  partition  or  other  chancery  sale,  no 
<"o-tenant.  who  has  claimed  and  received  his  share  of  the 
proceeds,  can  deny  the  validity  of  the  petition.  lie  cannot 
be  allowed  to  retain  the  money  and  regain  the  land.'*  The 
same  principle  ajjplies  to  sales  made  by  guardians,  adminis- 
trators and  executors.  A  Avard  or  heir  may  elect  to  affirm 
a  void  sale,  and  thus  entitle  himself  to  the  proceeds.''  When 
a  valid  election  is  once  made  it  cannot  be  revoked.  The 
latitication  by  a  ward  or  heir  of  a  sale,  made  by  an  admin- 
i>tr;itor  or  gu;ii(iiaii.  may  be  made  also  by  receiving  the 
proceed.",  of  the   >:\\v.''     Of  course,  this   ratiticatiou  cannot 

'  Smith  v.  Warden.  11)  V.\.  St.  429. 

2Spragg  v.  Stjriver.  2b  Pa.  St.  2S1.  04  Am.  Dec.  (>98:  Mitchell  v. 
Freedley.  10  Pa.  St.  208;  Maple  v.  Kussart,  oS  Pa.  81.352.  in  Am.  Dec. 
214;  Willardv.  Wiilard.  no  Pa.  St.  128. 

^  Mock  V.  Stuckey.  -SO  Ga.  187. 

*  Tooley  v.  Gridley.  3  S.  &  M.  403, .")1  Am.  Dec.  G2S:  Menitt  v.  Home, 
.">  Ohio  St.  307.  07  Am.  Dec.  2H8. 

■•  .lennings  v.  Kee.  .'>  Ind.  257. 

'■ /Ij.;  Lee  v.  (Jardncr,  20  Miss.  521:  Pursely  v.  Hays.  17  Iowa,  310; 
Deford  V.  Mercer,  24  Iowa,  118,92  Am.  Dec.  400;  Wilson  v.  IJij^ger,  7 
W.  it  S.  Ill ;  Hiindy  v.  Noonan,  51  Miss.  lOG;  Parmelee  v.  McGinty,  52 
Miss.  475;  Walker  v.  Miilvean,  70  III.  18;  Corwin  v.  Shonp,  70  Jll.  240; 
iJiiinp  V.  (;  trd,  107  Ind.  .573;  Karns  v.  Olney,  80  Cal.  90,13  Am.  St. 
Itep.  101 :  Wilmore  v.  Stetler.  137  Ind.  127.  45  Am.  St.  Uep.  109. 

173 


§    ;)0  VOID    .lUDlCIAL    SALES. 

he  accompli.sliecl  throuoh  the  lution  of  a  minor,  or  of  au}^ 
ptMson  in)(  oonipctent  to  act  for  himself.^  If  the  person 
whoso  estate  was  sold,  though  he  does  not  directl}'  receive 
the  proceeds  of  the  sale,  is  benefited  therebv,  as  Avhere 
thev  are  apphed  to  the  extinction  of  some  lien  or  other  en- 
forcible  claim,  the  mere  fact  of  such  benefit  does  not 
amount  to  a  ratification,  but  it  entitles  the  purchaser  to 
f()mi)el  the  person  entitled  to  avoid  the  sale  to  exercise  his 
riirht  to  elect  either  to  ratify  or  to  rescind.  Speaking  of 
the  relation  of  heirs  to  a  purchaser  at  a  judicial  sale,  the 
Supreme  Court  of  Alabama  said:  "Regarding  the  proceed- 
ings in  the  probate  court  as  void  at  law  for  the  reasons 
stated,  what,  we  may  inquire,  were  the  eciuitable  rights,  if 
su\y,  acquired  under  it  by  the  purchaser?  This  question 
has  been  full)'  settled  by  our  past  decisions.  Where  land 
of  a  decedent  is  sold  by  the  probate  court  for  the  payment 
of  debts,  or  for  distribution,  and  the  proceeding  is  void  for 
want  of  jurisdiction,  or  otherwise,  and  the  purchase  mone}^, 
lieing  paid  to  the  administrator,  is  applied  by  him  to  the 
payment  of  the  debts  of  the  decedent's  estate,  or  is  dis- 
tributed to  the  heirs,  while  the  sale  is  so  far  void  as  to  con- 
vey no  title  at  law,  the  purchaser  nevertheless  ac(juires  an 
etpiitable  title  to  the  lands,  which  will  be  recognized  in  a 
court  of  e(|uity.  And  he  may  resort  to  a  court  of  equity  to 
compel  the  heirs  or  devisees  to  elect  a  ratification  or  rescis- 
sion of  the  contract  of  purchase.  It  is  deemed  unconscion- 
able that  the  heirs  or  devisees  should  reap  the  fruits  of  the 
purchaser's  payment  of  money  appropriated  to  the  dis- 
charge of  debts,  which  were  a  charge  on  the  lands,  and  at 
the  same  time  recover  the  lands.  They  are  estopped  to 
deny  the  validity  of  the  sale,  and  at  the  same  time  enjoy 
the  benefits  derived  from  the  appropriation  of  the  purchase 
money.     And  this  principle  applies  to  minors  as  well  as 


'  A  feme  covert  may  affirm  a  void  sale    by  receiving  the  proceeds. 
Kempe  v.  I'intard,  32  Miss.  'iii. 

174 


i 


VOID    JUDICIAL    8ALES^  §     ')<> 

adults.^    If  the  person  whose  property  was  sold  be  a  niiuor. 
he  cannot  ratify  the  sale  until  after  he  becomes  of  lawful 
age.     Nor  can  anyone  ratify  for  him  during  his  minority. 
No  act  done  or  sanctioned  by  his  guardian  can  bind  him  as 
a  ratification;  nor  will  he  be  held  to  affirm  the  sale  merely 
on  the  ground  that,  during  his  minority,  the  proceeds  were 
applied  to  his  use  or  for  his  benetit,'-  nor  because  such  pro- 
ceeds were  accounted  for  by  the  administrator  in  his  settle- 
ments with  the  estate,  no  part  being  paid  oyer  to  the  heir.-^  In 
Missouri  and  Wisconsin,  the  receipt  of  the  proceeds  of  a 
guardian's  sale  by  a  minor  after  coming  of  age,  or  by  a  lunatic 
after  becoming  sane,  does  not  operate  as  an  affirnnince  of  the 
sale.*     The  hardship  of  this  rule  is  very  materially  amelio- 
rated, in  the  States  named,  by  the  adoption  of  another  rule, 
under  which  a  bona  pie  purchaser  of   lands  soUl  at  a  yoid 
judicial  sale  is  entitled  to  retain,  in  many  cases,  a  charge  or 
lien  on  the  property,  for  the  amount  paid  by  him.     We  are 
unable  to  understand.why  one  whose  lands  were  sold  while  lu- 
was  an  infant  should  not  be  bound  by  acts  done  after  attain- 
ing- his  maioritv  to  the  same  extent  as  any  other  adult,  and 
hence  believe  that  the  l)etter  opinion  is  that  his  receii)t  of 
Ihe  proceeds  of  the  sale  must  bo  regarded  as  a  ratitication. ' 
In  Indiana,  though  the  sale  of  tiie  i)roperly  of  an  infant  is 
void,  because  the  court  was  without  jurisdiction  to  api><»inl 
the  guardian,   still,  if  the  purchaser  pays  for  the  land  in 
o-ood  faith,  and  the  guardian,  under  the  direction  of  the 
court,  invests  the  proceeds  of  the  sale   in  other  lands  in  the 
name  of  the  ward,  the  i)urchaser  will  be  protected/' 

It  is  essential  to  every   valid  ratitication   that  the  ratify- 

'  \Voodstock  I.  Co.  V.  Fullenwider.  87  Ala.  .>S4.  13  Am.  St.  Itep.  7:'.. 

^{equav.  Holmes,  26  X.  Y.  338;  Ayilkinson  v.  Kilby.  24  Wii^.  1 II  : 
Longworlh  v.  Gofoi  th,  Wright,  102. 

■To\vn."en(l  v.  Tallent.  33  Cal.  4."),  01  Am.  Dec.  t;i7. 

<  V'alle  V.  I-'lemino^.  10  Mo.  4.ji.  CI  Am.  I)(n'.  .')ii(i;  Mohi- v.  Tulip,  40 
Wi.s.  01!. 

•■'  Smith  V.  (;ray,  110  \.  (Jar.  311. 

«  Decker  v.  Fes.-ler,  14tj  Ind.  10. 

17.'. 


^    ;,0(?  VOID   JUDICIAL    SALKS. 

iiii:  acts  were  done  with  a  full  knowledge  of  the  facts  con- 
stituting the  transaction  to  be  ratified,^  and  that  the  pro- 
iceds  of  the  benefit  of  the  act  be  retained  after  such 
knowledge. - 

§  jOa.  Estoppel  to  Question  the  Validity  of  a  Sale. — 
lie  whose  property  is  sold  may  be  estopped  from  question- 
ini>-  the  validity  of  a  sale  by  facts  occurring  either  before 
or  after  it  was  made,  lie  is  to  the  same  extent  as  other 
pei-sons  bound  to  act  Avith  reasonable  diligence  and  in  good 
faith,  and  if  he,  either  by  his  action  or  unreasonable  inac- 
tion, causes  one  to  change  his  position  to  his  prejudice,  an 
estoppel  mav  arise  in  favor  of  the  latter  adequate  for  his 
l)rotection.  Thus,  though  property  w^as  exempt  from  exe- 
i'ution,  the  conduct  or  laches  of  the  defendant  may  be  such 
as  to  estop  him  from  urging  his  right  of  exemption  against 
the  i)urchaser.^  Though  the  levy  was  not  sufficient  to  sup- 
port the  sale,  yet  the  defendant  may,  by  his  express  or  im- 
])lied  waiver  or  by  other  act  or  acquiescence,  estop  himself 
from  resisting  on  that  account  title  based  thereon.^  Though 
the  jn'operty  sold  by  an  administrator  was  a  homestead, 
and  as  such  not  subject  to  the  jurisdiction  of  the  court,  or, 
at  all  events,  was  such  that  the  court  had  no  right  to  direct 
its  sale,  yet  if  such  administrator,  being  the  party  entitled 
to  the  homestead,  applied  for  an  order  authorizing  its  sale, 
and  in  his  official  capacity  received  the  purchase  price,  both 
he  and  his  successors  in  interest  are  estopped  from  denying 
the  validity  of  the  sale.^  The  sale  of  lands  by  an  admin- 
istrator in  which  he  has  a  personal  interest  ought  not  to  be 
n\ade  by  him  to  one  who,  from  the  petition  for  the  sale  and 
the  other  proceedings  in  the  estate,  believes  and  is  justified 

'  Dolargue  v.  Cress,  71  111.  380;  Smith  v.  Tracy,  36  N.  Y.  70. 
2  McDowell  T.  McKenzie,  65  Ga.  630,  Wallace  v.  Sawyer,  00  Ind.   409. 
•'  Freeman  on  Executions,  sees.  212a  and  214«. 

^  Freeman  on  Executions,  sec.  260;  Taffts  v.   Manlove,  14  Cal.  50.  73 
Am.  Dec.  610;  Corniff  v.  Cook,  05  Ga.  61,  51  Am.  St.  Hep.  55. 
••  Ions  V.  Harbison,  112  Cal.  260. 

17  (J 


VOID    JUDICIAL    SALES.  §    50rt 

in  believing  that  the  administrator  makes  no  chiim  thereto, 
and  he  is  estopped,  after  such  sale,  from  asserting  an}'  title 
against  the  purchaser,  though  such  title  must  have  been 
apparent  from  an  inspection  of  the  public  records.^  There 
is  no  doubt  that  one  who  permits  his  property  to  be  sold  as 
the  property  of  another  and  who  fails  to  disclose  his  in- 
terest may  be  estopped  by  his  conduct  from  subsequently 
asserting  it,-  and  we  see  no  reason  why  this  principle  is  less 
applicable  to  execution  and  judicial  than  to  other  sales. 
Though  the  property  belongs  to  the  defendant  there  may 
be  defects  in  the  judgment,  execution,  or  other  proceedings 
rendering  them  insufficient  for  the  transfer  of  his  title.  It 
mav  be  that  he  is  not  under  any  active  obligation  to  be 
present  at  the  sale,  or,  if  present,  to  there  disclose  or  call 
attention  of  the  purchasers  to  such  defects,  but  his  appar- 
ent acquiescence  in  the  sale,  evidenced  by  his  then  deliver- 
ing the  property  to  the  purchaser  without  objection,  will, 
in  some  of  the  States,  be  held  to  operate  as  an  estoppel 
against  his  subsequent  recovery  of  the  property. on  account 
of  defects  in  the  writ, -^  and  his  active  participation  in  a  sale 
must  orenerallv  be  regarded  as  indicatino-  his  consent  thereto, 
or  as  an  implied  representation  that  he  knows  of  no  reason 
why  the  sale  should  not  be  made,  and  he  has  generally  been 
held  to  be  estopped  from  changing  his  attitude  as  against 
l)crsons  who  have  relied  thereon.-  In  speaking  of  the  con- 
<luct  of  certain  administrators  and  their  subsequent  attempt 
to  avoid  a  sale,  the  Supreme  Court  of  Florida  very  forcibly 
said:  "  The  administrators  de  bonis  non  vcei'C  assisting  at 
and  encouraging  and  aiding  this  sale.  The  property  sold, 
according  to  testimony,  at  its  fair  value.  Can,  now,  any 
reasonable  })erson  arrive  at  any  other  conclusion  than  that 
the  condition  of  the   purchaser  or  purchasers   was  or  were 

'  Lindsay  v.  Cooper.  04  Ala.  170,  33  Am.  St.  Rep.  105. 

^  Karns  v.  Olney,  80  Cal.  00,  13  Am,  St,  Hep.  101, 

3  Rawles  v,  Jackson,  104  Ga,  503,  GO  Am.  St,  Kep,  185, 

(12)  177 


^     ,-,()„  VOID    .irUKIAL     SALKS. 

rliruiuoa  I)v  this  ooiulucl  ?  Suppose  llicso  adiiiinistnilors 
l)V  IhoMisclvcs  oi-  llioir  attonioy,  with  their  usseut,  had  said: 
this  property  has  l)een  wrongfully  h'vied ;  it  is  the  property 
of  the  administrators  de  bonis  non  of  Parkhill,  deeeased  : 
it  has  been  levied  upon  as  the  property  of  the  adiiiinistra- 
lors  whose  letters  have  been  revoked.  The  judgment  is 
void.  The  execution  is  void.  The  whole  matter  is  illegal, 
and  purchasers  will  buy  at  their  peril.  Would  the  pro})- 
i-rlv,  under  sueh  circumstances,  have  brought  fair  valuer 
Would  Ponder,  who  is  represented  as  a  i)rudent,  cautious 
man,  have  become  a  purchaser?  Was  not,  in  tine,  a  belief 
induced  bv  the  conduct  of  these  administrators,  which 
caused  the  purchaser,  Ponder,  to  change  his  previous  posi- 
tion? If  so  (and  so  we  think),  then,  by  the  law  of 
estoppel,  they  are  concluded  from  averring  against  Ponder 
a  different  state  of  things  existing  at  the  same  time."  ^ 

The  parties  to  be  affected  by  the  sale  may  also  be  es- 
t  o})ped  from  denying  its  validity  by  their  action,  and,  perhaps, 
by  their  inaction  at  a  subsequent  time.  This  subject,  or  at 
least  one  branch  of  it,  has  been  referred  to  in  the  preceding- 
section  considering  Avhen  a  sale  is  in  law  deemed  ratified  or 
confirmed  l)y  a  party  who  otherwise  w'ould  be  entitled  to 
((uestion  it.  It  was  there  shown  that  such  ratification  was 
conclusively  implied  from  the  receipt,  with  knowledge  of 
the  facts,  of  the  proceeds  of  the  sale.  Many  of  the  decis- 
ions, instead  of  calling  this  a  ratification,  speak  of  it  as 
producing  an  estoppel  precluding  any  person,  not  under  any 
disability,  receiving  the  proceeds  of  the  sale  or  any  part 
thereof  from  questioning  its  validity,  if  such  proceeds  were 
received  and  retained  with  knowledge  of  the  fact  on  account 
of  which  the  sale  was  subject  to  successful  assault.  The 
rule  is  applicable,  though  the  judgment  under  wdiich  the  sale 
was  made  is  void  for  want  of  jurisdiction,  and  it  is  not 
material  whether  the  defect  in  jurisdiction  related  to  the 

'  Ponder  v.  Moseley,  2  Fla.  207,  48  Am.  St.  Dec.  194. 

178 


VOID    JUDICIAL    SALES.  §    i>()a 

subject-uialter  of  the  proceedina-  or  the    persons    aiainst 
whom  it  was  prosecuted.      ''It  is  a  familiar  i)riiu'iple  of  the 
law  that  a  j)arty  aeceptinsand  retaininu'  the  fruits  of  avoid 
judgment   is  esto[)ped  from  assailing  the  judgment  itself.^ 
In  none  of  the  eases  cited,  however,  did  it  become  necessary 
to  determine  the  effect  of  receiving  the  benefits  of  a  judg- 
ment void  for  the  want  of  jurisdiction  in  the  court  over  the 
subject-matter  of  the  suit,  although  the  huiguage  used  iu 
some  of  the  o[)iuions  is  broad  enough  to  cover  such  cases. 
In  the    case  at  l)ar  the  couit  below,  in  some  of  the  instruc- 
tions given  to  the  jury,   seems  to  have  (h"a\vn  a  distinction 
between    the    case    of  a    party    accepting  the    fruits  of    a 
judgment  rendered  by  a  court  without  jurisdiction  of   the 
su))ject-matter,  and  a  case  in  which  the  party  has  received 
tlie  fruits  of  a  judgment  voidable  for  want  of  jurisdiction 
over  the  person,  or  on  account  of  some  informality  occurring 
in  the  proceedings  antecedent  to  the  judgment ;    but  this 
theory  is  expressly  waived  by  counsel  for  apjx^llee  in  their 
argument  filed  in  this  court,  and  after  diligent  search  I  have 
been  unable  to  find   any  authority  iu  support  of  the  theory 
of  the  trial  court.      Nothing  in  the  testimony  indicates  that^ 
at  the  time  the  a[)pellant  paid  and  the  ai)pcllee  received  the 
amount  of  the  judgment  of  the  c(mnty  court,  either  party 
entertained  a  suspicion  of  the  invalidity  of  such  judgment  : 
and,  under  these  circumstances,  we  must  presume  thatbotlt 
parties  were  acting  in  good  faith,  under  the  belief  that  the 
proceedings  in  that  court  were  valid  and  binding,  and  that 
the  judgment  there  rendered  had  all  the  force  and  effect  of 
a    valid   judgment,  and    that  the  nu^ney   was  paid   and    the 
land  taken  with  this  understanding.     And  asapi)ellee,  after 
the  notice  of  the  invalidity  of  such  proceeding,  continued 
to  retain  the  money  so  paid,  I  am  of  the  o[)inion  that  he  is 

'  Kite  V.  'I'own  of  Yellowhead,  80  111.  "JOS;  'J'ovvn  v.  Town  of  Klack- 
berry,  29  111.  IH7;  Felch  v.  (Jilman.  22  Vt.  80;  Embury  v.  (.'onnor.  3  N. 
Y.  r,]l,.-)3  Am.  Dec.  28.");  Hitchcock  v.  Danbiny,  etc..  K.  K.  Co.,  2ri 
Conn.  .")]<!. 

17!t 


^    ,■)()(?  M)ID    .JUDICIAL    SALES. 

rsiopped  from  ileiiying  the  validity  of  such  judgment,  and 
that  ho  shouUl  be  held  bound  by  that  adjudication  to  the 
same  extent  as  he  would  have  been  had  the  court  had  com- 
plete jurisdiction,  and  that,  for  the  purposes  of  this  action, 
the  s:unc  should  be  treated  in  all  respects  as  a  valid 
judiiinont."^  ^ 

The  rule  or  principle  to  which  we  have  referred  is  especi- 
mIIv  applicable  to  the  sale  of  the  property  of  decedents  and 
the  receipt  by  heirs  of  the  proceeds  of  such  sales  or  some 
part  thereof.''^  By  this  statement  we  by  no  means  imply 
that  the  principle  is  not  also  applicable  to  sales  under 
execution,'^  and  to  guardians'  and  other  judicial  sales. ^ 
AVith  respect  to  adults,  we  think  it  not  essential  to  the 
creation  of  an  estoppel  against  them  that  the  proceeds 
of  the  sale  be  actually  received  by  them.  If  an  admin- 
istrator, after  making  a  sale,  receives  the  purchase  price 
and  charges  himself  therewith  in  his  accounts,  and  thereby 
the  heirs  receive  the  benefit,  either  in  the  augmenting 
of  the  shares  which  are  ultimately  paid  to  them,  or  in 
the  discharge  of  liabilities  otherwise  enforceable  against 
them  or  their  shares,  they  hare  substantially  received  the 
proceeds  of  the  sale,  and,  while  retaining  the  benefit  which 
has  thus  accrued  to  them,  are  estopped  from  avoiding  the 
sale.'^ 

When  a  sale  is  made  of  the  property  of  minors,  whether 
l)v  their  ouardian  or  bv  the  executor  or  administrator  of 


1  Denver  City,  etc..  Co.  v.  Middaugh,  12  Colo.  434,13  Am.  St.  Eep.  234. 

2  Wilson  V.  Holt,  S3  Ala.  528,  3  Am.  St.  Rep.  768;  Oden  v.  Dupiiy,  93 
Ala.  39;  Roberts  v.  Lindley,  121  Ind.  .^)G;  Palmerton  v.  Hoop,  131  Ind. 
23;  Wilmorev.  Steller,  137  Ind.  127,  45  Am.  St.  Eep.  1(59;  Axton  v.  Car- 
ter, 147  Ind.  672;  Cameron  v.  Coy,  165  Pa.  290;  Sager  v.  Mead,  171  Ta. 
349:  Lewis  v.  Lichty,  3  Wash.  213,  28  Am.  St.  Rep.  25. 

•■•Deford  v.  Mercer,  24  Iowa,  118,  92  Am.  Dec.  460;  France  v.  Haynes, 
67  Iowa,  139, 

*  Iloffmire  v.  Holcomb,  17  Kan.  378. 

^  Bell  V.  Craig,  .52  Ala.  215;  Jones  v.  Woodstock  I.  Co.,  95  Ala.  551 ; 
Oden  V.  Dupuy.  99  Ala.  36. 

180 


VOID    JUDICIAL    SALES.  §    oOo 

their  ancestor,  the  dec^i.sion.s  are  not  entirely  harmonious 
respecting  the  circumstances  cre-.iting  an  estoppel  against 
their  avoiding  or  disregarding  the  sale.  Of  course,  they  are 
not  estopped  from  the  mere  fact  that  they  were  represented 
in  the  proceeding,  either  by  their  guardian  ad  litem  or  gen- 
eral guardian;^  nor  from  the  mere  use  of  some  part  of  the 
proceeds  for  their  benefit,  especially  where  such  use  was  by 
*their  guardian,  who  is  also  their  father,  and  in  the  latter  ca- 
pacity under  the  duty  of  furnishing  them  means  of  procuring 
their  education  and  support,^  We  have  cited  decisions  in 
the  preceding  section  showing  that  their  receipt  of  the  pro- 
ceeds of  the  sale,  after  attaining  their  majority,  is  not  a 
ratification  of  it  hy  them,  but  we  believe  this  opinion  to  be 
neither  reasonable  nor  sustained  by  the  weight  of  authority, 
and  we  doubt  not  that  they  are  estopi)ed  by  such  receipt."' 
In  the  absence  of  the  direct  receipt  of  such  proceeds  tliey 
may  have  had  the  benefit  thereof,  either  through  an  ac- 
counting bv  the  administrator  or  suardian  makinir  the  sale. 
or  by  the  use  of  the  proceeds  in  their  support  or  education. 
If  a  sale  is  made  to  or  for  the  benefit  of  an  administrator 
or  guardian,  probably  the  fact  that  he  has  charged  himself 
in  his  account  with  the  proceeds  of  the  sale  does  not  create 
any  estoppel  in  his  favor  Avhich  will  enable  him  to  resist 
proceedings  by  the  heirs  or  other  minors  for  the  recovery 
of  the  property.^  Perhaps  the  Aveight  of  authority  supports 
the  denial  of  the  existence  of  any  estoppel  against  minors 
on  account  of  the  use  for  their  support,  or  the  other  a})))!!- 
cation  for  their  benefit,  of  the  proceeds  of  a  sale  which,  as 
against  them,  was  void  when  made:"'  but  we  prefer  those 

'  Ream  v.  Wolls,  CI  Ohio  St.  131. 

2  Foley  V.  Mutual  L.  I.  Co.,  138  N.  Y.  333,  3J  Am.  St.  Hep.  43U. 

-Terrell  v.  Weymouth,  32  Fla.  2.J.5,  37  Am.  St.  Rep.  ;m  ;  AVilmoro  v. 
Stetler,  137  Ind.  127,  45  Am.  St.  Rep.  IGO;  Kingsley  v.  .Jordan,  8.">  Me. 
137;  Tracy  v.  Robert?.  88  Me.  310.  51  Am.  St.  Rep.  304. 

■•  Sweeney  v.  Warren.  127  N.  Y.  52(J.  24  Am.  St.  Rep.  4fiS. 

'-•  Rowe  V.  Griffith.  57  Neb.  488;  Bachelor  v.  Korb.  ."iS  Neb.  122.  7<".  Am. 
St.  Rep.  70;  Wilkinson  v.  Filby,  24  Wis.  441. 

181 


X    ,-,(),/  VOID    .IIDICIAL    SALES. 


.K'cisioiis  which  iiflinn  that,  under  such  circumstunces,  the 
(>(|uitv  of  the  purchaser  is  superior  to  that  of  the  minors.^ 
I  ft  he  proceeds  of  the  sale  of  property  of  infants  is  invested 
in  other  property,  the  title  of  which  is  taken  in  their  names, 
orsuch  proceeds  arc  otherwise  held  for  them  or  as  a  part  of 
their  estate,  they  arc  not  entitled  to  retain  the  property 
thii^  ac(iuired,  and  at  the  same  time  to  re[)udiate  the  sale  to 
Mhich  its  acquisition  was  due.  Conceding  that  they  are 
entitled  to  elect  whether  they  will  permit  the  original  sale 
to  stand,  they  cannot  recover  the  property  until  the  election 
is  made,  and  the  courts  luay  exercise  the  right  of  election 
for  them  and  determine  that  they  shall  not  rescind,  but 
shall  be  bound  by  the  sale,  though,  when  made,  it  was,  a.s 
aoainst  them,  void.^  Though  the  proceeds  of  a  void  sale  are 
not  actually  received,  yet  if  a  person  has  an  election  either 
lo  waive  or  to  ratify  the  sale,  and  he  does  some  act  mani- 
festing his  election  to  ratify  it,  the  rati tication  is  irrevocable, 
and  he  is  estopped  from  subsequently  (luestiouing  the  sale, 
as  where  he  attempts  by  suit  to  recover  his  share  of  such 
proceeds.-'^  > 

It  mav  happen  that  some  of  the  persons  affected  by  a  sale 
are  estopped  to  dispute  its  validity  and  others  not,  or  that 
the  same  person  may  be  bound  by  an  estoppel  in  one  capac- 
ity and  free  from  it  in  another.  Thus,  if  an  administrator, 
executor,  or  guardian  makes  a  void  or  unauthorized  sale  of 
property,  it  may  be  that  those  Avhom  he  represents  are  not 
bound  thereby,  but  if  he  has  an  interest  in  the  property  as 
heir  or  devisee,  or  claims  some  title  independent  of,  and 
paramount  to,  that  of  the  ward  or  decedent  represented  by 
iiini,  still,  if  in  the  proceedings  culminated  in  a  sale  and 
a  deed  ajjparently  nuide  pursuant  thereto,  he  has  manifestly 

>  Milner  v.  Vandivere,  8G  Ga.  540. 

-  Goodman  v.  Winter,  64  Ala.  410,  38  Am.  Eep.  13;  Comnionvvealtti  v. 
Sherman's  Adnir.,  18  Pa.  St.  343.  See  also  Jacoby  v.  McMabon,  174  Pa. 
133. 

■  Lathrop  v.  Doty.  82  Iowa,  272. 

182 


VOID    .TIDKIAI.    SALKS.  §     ^Oa 

dealt  with  the  property  as  thtit  of  his  ward  or  decedent,  and 
is  estopped  in  his  capacit}^  as  heir,  or  devisee,  or  claimant  of 
an  adverse  or  independent  title,  from  assertinir  either  that 
the  deed  so  executed  by  him  is  nnavailing-.  or  that  it  failed 
to  convey  the  title  in  fee  .simple. ^ 

We  apprehend,  where  the  sale  is  void,  the  owner  of  the 
})roperty  sold  is  entitled  to  maintain  an  action  for  its  recov- 
ery at  any  time  within  the  period  specitied  in  the  statute  of 
limitations  applicable  in  his  State  to  an  action  of  the  class 
Avhich  he  brings,  and  that  the  failure  to  bring  it,  if  not 
prolonged  beyond  that  period,  is  not  sufficient  evidence  of  a 
ratification  of  a  sale,  nor  does  it  create  any  estoppel  against 
the  prosecution  of  the  suit.  Nevertheless,  there  are  man}' 
decisions  in  which  long  delay  has  been  taken  into  consid- 
eration, especially  where  the  property  has  been  permitted  to 
pass  into  the  hands  of  strangers  to  the  original  sale.^  Mere 
^•ictjuiescence  or  inaction  is  sometimes  spoken  of  as  creating 
an  estoppel  against  the  assertion  of  aright  to  recover  })roi)- 
erty  which  has  been  the  subject  of  a  void  sale,-'  especially 
when  the  inaction  continued  for  several  years,*  but  we  are 
of  the  opinion  that  when  no  benefit  accrues  to  one  from  a 
sale,  and  he  is  not  otherwise  estopped  from  assailing  it,  he 
may  safely  take  the  time  allowed  by  the  statute  of  limita- 
tions."' If,  on  the  other  hand,  the  sale  is  not  void,  but 
voidable  only,  at  the  election,  of  an  heir  or  other  person 
affected  by  it,  he  must  exercise  his  right  of  election  within 
n    reason;iI)h'    time;     otherwise    he    is    presumed    to    have 

'  Lindsay  v.  Cooper,  04  Ala.  170,  33  Am.  St.  Rep.  105;  Wells  v.  Stock- 
elberg,  52  Xeb.  597.  6G  Am.  St.  Rep.  529:  Ailington.  S.  B.  v.  raulsen. 
.59  Xeb.  94. 

-  Benedict  v.  Bonnot,  39  La.  Ann.  972. 

'  Davie  v.  Davie  (Ark.).  18  8.  W.  Rep.  935. 

*  Jones  V.  AVoodstock  L  Co.,  95  Ala.  551 :  Ila/el  v.  Lyden.  51  Kan.  233. 
37  Am.  St.  Rep.  273;  Mitchell  v.  Campbell,  19  Or.  198:  Adams  v.  How- 
ard. 110  X.  C.  15:  Ilolbert  v.  Carroll  (Tex.  Civ.  App.).  25  s.  W.  Uev- 
1102. 

■  Harrison  v.  Harrison.  KHi  X.  C  282. 

l.s;', 


^    /Jl  VOID    JUDICIAL    SALES. 

rutitied  the   sale,  and,  if  so,  his  ratification   is    necessarily 
irrevocable.^ 

§  ol.  Right  of  Purcbasers  to  be  Subrogated  to  tbe 
liieu  Discharged,  Denied. — A  judicial  or  execution  sale  is 
usually  made  for  the  i)urpose  of  satisfying  some  lien  or 
charge  on  the  property  sold.  After  such  sale  is  made,  and 
the  amount  of  the  bid  paid,  the  owner  of  the  property,  if 
he  can  avoid  the  sale,  wdl  not  only  retain  the  property 
which  was  originally  his,  but  will  also  have  its  value  en- 
hanced l)y  the  amount  paid  to  remove  the  charge  or  lien 
therefrom.  According  to  natural  equity,  it  is  clear  that  the 
owner  ought  not  to  thus  profit  by  the  sale,  and  that  the 
purchaser  ought  to  be  suln-ogated  to  the  rights  of  the  holder 
of  the  charge  or  lien.  There  is  some  doubt  whether  the 
equity  which  is,  in  fact,  administered  by  the  courts,  en- 
forces, in  this  case,  what  we  deem  to  be  the  dictates  of 
natural  equity.  In  a  case  decided  in  Indiana,  an  execution 
sale  was  made  under  a  valid  judgment,  but  the  sale  itself 
was  inoperative,  on  account  of  a  non-compliance  with  the 
appraisement  law.  The  purchaser,  however,  claiilied  that 
he  was  entitled  in  equity  to  be  subrogated  to  the  rights  of 
the  judgment  creditor.  The  supreme  court,  in  denying  the 
claim,  said:  "Can  the  doctrine  of  suln-ogation  be  applied 
to  the  case  made  by  the  record?  This  is  the  main  inquiry 
in  the  case.  We  are  not  advised  by  any  direct  adjudication 
on  the  point  involved  in  this  question;  but  there  are  various 
authorities  to  the  effect  that  'it  is  only  in  cases  where  the 
person  paying  the  debt  stands  in  the  situation  of  a  surety, 
or  is  compelled  to  pay  in  order  to  protect  his  own  interest, 
or  in  virtue  of  legal  process,  that  equity  substitutes  him  in 
l)iace  of  the  creditor,  as  a  matter  of  course,  without  any 
special  agreement.  A  strangerjpaying  the  debt  of  another 
will  not  be  subrogated  to  the  creditor's  right,  in  the  absence 
of  an  agreement  to  that  effect ;    payment  by  such  person 

'Egan  V.  Grece,  79  Mich.  629;  Boyer  v.  East,  IGl  N.  Y.  580,  76  Am. 
St.  Rep.  290. 

184 


VOID    JUDICIAL    SALES.  §    51 

absolutely  extiuguishes  the  debt  and  security.'^  This  ex- 
position being  correct,  and  Ave  think  it  is,  we  are  unable  to 
perceive  any  ground  upon  which  the  decree,  so  far  as  it 
subrogates  the  plaintiffs  to  the  rights  of  the  judgment 
creditor,  can  be  maintained.  The  position  of  Marston  was 
that  of  an  ordinary  vendee  at  a  sheriff's  sale,  and  nothing- 
more.  There  is,  indeed,  nothing  in  the  case  in  any  decree 
tending  to  show  that  the  protection  of  his  interest  required, 
or  even  induced,  the  purchase.  He  purchased  the  land  and 
paid  for  it  voluntarily;  we  must,  therefore,  hold  that  the 
amount  which  he  paid  to  the  sheriff  operated  as  a  discharoe, 
pro  tanto,  of  the  creditor's  judgment;  and  that  judgment 
being  thus  satisfied  there  could  be  no  substitution."  ^  The 
quotation  we  have  just  made  very  fairly  represents  the 
reasoning  of  those  courts,  which  hold  that  the  purchaser  at 
a  void  execution  or  judicial  sale  cannot  be  subrogated  to 
the  rights  of  the  holder  of  the  lien  which  his  payment  has 
contributed  to  discharge.  It  must  be  confessed  that  the 
rcasonino;  is  in  consonance  with  the  oeneral  law  of  subro- 
gation.  This  general  law  affords  no  encouragement  to  one 
person  who  voluntarily  discharges  the  del)t  of  another. 
Such  a  person  is  styled  a  volunteer.  Ilis  acts  arc  without 
compulsion,  and  he  is,  therefore,  not  classed  with  those 
persons  who  are  compelled,  as  sureties  or  otherwise,  to 
discharge  oblio^ations  on  whichothers  are  primarily  respon- 
sible. The  purchaser  at  a  void  judicial  sale  acts  under  a 
mistake  of  law;  and  this,  as  is  well  known,  is  rarely,  if 
ever,  recognized  as  sufficient  to  induce  the  interposition  of 
courts  of  ecjuity.  Purchasers  at  void  probate  sales  have 
also  been  judged  not  to  be  entitled  to  subrogation  to  the 
rights  of  the  creditors  whose  claims  their  purchases  had 
discharged,-'  but  the   right  of   purchasers  at   void  judicial 

'  1  Leading  Cases  in  Equity,  11:^,  and  authorities  there  cited. 
-  Jtichmond  v.  Marston,  15  Ind.  13G,  J2  Am.  Dec.  204. 
•''  Cbauibers  v.  .Jones,  72  III.  27!);'Bi8bop  v.  O'Connor,  iil>  111.  -IHl  :  Kin- 
ney V.  Knoebel,  51   111.  112;   Xowler  v.  Coit,   1   Ohio.  2:i(i,  13  Am.  De--. 

185 


^    ;,  1  VOID    JUDICIAL    SALES. 

smIos,  wlu'lhcr  in  probate  or  chancery,  to  subrogation,  is 
steadily  gaining-  ground,  and  is  now  established  by  the  de- 
<-id('d  preponderance  of  authority,  as  will  appear  from  the 
following  sections. 

In  truth,  we  do  not  know  that  there  is  any  State  in  which 
the  application  of  the  doctrine  of  subrogation  to  execution 
or  judicial  sales  would  now  be  Avholly  denied.  We  have 
been  unable  to  discover  any  case  overruling  that  cited  by 
us  from  the  Supreme  Court  of  Indiana,  but  the  legislature  of 
that  State  enacted  a  statute  applying  the  equitable  rules  of 
subrogation  to  both  execution  and  judicial  sales. ^  In  their 
subsequent  decisions,  the  courts  of  that  State,  however, 
took  pains  to  declare  that  the  rule  is  not  "dependent  upon 
the  statutory  law,"^  and  they  repudiated  the  reason  which 
had  been  supposed  to  justify  the  refusal  to  grant  the  right 
of  subrogation  by  atfirming  that  "the  purchaser  at  an  in- 
valid sheriff's  sale  is  not  a  volunteer.  It  is  the  right  of  a 
citizen  to  bid  at  sheriff's  sales,  and  it  is  not  for  the  debtor 
Avhose  debt  the  purchase  money  pays  to  denominate  him  a 
A'olunteer,  or  to  deny  his  right  to  make  the  debt  out  of  the 
property  pledged  for  its  payment.  It  cannot  make  any  dif- 
ference to  the  debtor  who  gets  the  property,  provided  it  goes 
in  the  discharge  of  his  debt;  that  is,  where  he  pledges  it  to 
go,  and  there  is  where  equity  declares  it  shall  go."-^  In 
Illinois,  it  is  now  clear,  not  onlj^  that  no  relief  will  be 
granted  to  one  coming  into  equity  for, the  purpose  of  set- 
ting aside  or  avoiding  a  sale  until  he  repays  so  much  of  the 
])roceeds  of  the  sale  as  have  been  used  to  discharge  liens  or 
claims  against  the  property,^  but  also  that  the  doctrine  of 
,subrogation  is   a[)plicable  to   execution   and  judicial   sales 

640;  Salmond  v.  Trice,  13  Obio,  368;  Lieb  v.  Ludlow.  4  Ohio,  460.  Tbe 
rule  in  this  State  has  been  changed  by  statute. 

i  Walton  v.  Cox,  67  Ind.  164;  Paxtonv.  Sterne,  127  Ind.  289:  Milburu 
V.  I'hillips,  143  Ind.  93,  52  Am.  St.  Rep.  403. 

-  Short  V.  Sears,  93  Ind.  505. 

■  Bodkin  v.  Merit,  102  Ind.  293. 

■*  Wickiser  v.  Cook,  85  111.  68;  Brandon  v.  Brown,  106  111.  519. 

180 


^■OID    .TIDICIAL    SALES.  §     jl 

whenever  by  or  through  them  a  lien  is  discharued.^  But 
we  understand  it  to  be  still  denied  applicability  to  probate 
sales  when  their  proceeds  are  not  applied  to  pre-existing 
liens  on  the  property. 

AVe  must  admit  our  inability  to  understand  the  views  of 
the  courts  of  Michigan  upon  this  subject,  In  that  State, 
an  executor  sold,  for  the  purpose  of  paying  debts,  dece- 
dent's lands  of  which  the  devisees  had  taken  possession,  and 
it  was  held  that  his  action,  though  supported  by  an  order 
of  sale,  was  void,  on  the  ground  that  the  statute  expressly 
required,  under  such  circumstances,  any  balance  due  from 
the  devisees  to  be  collected  by  execution.-  Afterwards  the 
purchaser  sought  relief  by  a  suit  in  equity,  in  which  he,  in 
effect,  asked  that  the  amounts  paid  by  him,  in  so  far  as 
thev  had  been  applied  to  the  extinction  of  demands  which 
niioht,  J)y  appropriate  proceedings,  have  been  asserted 
against  the  property  of  the  devisees,  be  decreed  to  be  a' 
lien  on  such  property.  In  denying  relief,  the  supreme 
court  said:  "It  is  difficult  to  understand  on  what  principle 
such  a  claim  can  be  set  up.  No  rule  is  better  settled  than 
that  liens  can  only  be  created  by  agreement,  or  by  some 
Hxed  rule  of  law.  It  is  not  one  of  the  functions  of  courts 
to  create  them.-^  There  is  no  reason  for  allowing  complain- 
ants to  set  up  a  lien  in  this  case  which  would  not  apply 
with  equal  force  to  execution  or  judicial  sales  under  e(|ui- 
table  or  probate  decrees  and  orders.  T.ut  such  :i  doctrine 
would  be  a  novelty.  Every  one  is  bound  to  satisfy  himself 
of  the  authority  under  which  a  judicial  sale  is  made,  and 
buys  at  his  peril.  It  would  be  a  contradiction  in  terms  to 
hold  a  sale  void  for  want  of  authority  to  make  it.  and  yet 

1  Bnischke  V.  Wright.  1(J6  III.  188,  r)7  Am.  St.  JJci..  IJ:.:  Mcltany  v. 
Schonck,  88  111.  H^u. 

2  Atwood  V.  Frost,  .")!  Mich,  mi),  .">!)  IMich.  400. 

•■i  Bennett  v.  Nichols,  12  Mich.  22;  Wright  v.  Ellison.  I  Wall.  Ki; 
Lyster's  Appeal,  .54  Mich.  32.");  I'erkins  v.  I'erkins.  IC  Mich.  1(;2:  Itow- 
l^y  V.  Towsley,  ">:{  Midi.  321). 

187 


§    ,-,1  VOID    JUDICIAL    SALES. 

valid    cnouo-h    to    create  a  lien  for  the  purchase  money. 
Where  iudivichials  sell  their  own   lands  and  pay  for  them 
there  can  be  no  want  of  authority,  and  the  question  is  only 
one  of  title.     But  a  sale  made  by   quitclaim  deed,  Avithout 
covenants,  and  without  fraud  or  misrepresentation,  does 
not  entitle  the  purchaser  to  reclaim  his  money.     This  bill 
is  an  attempt,  not  only  to   give  to  a  void  probate  sale  the 
effect  of  a  warranty  deed,  but  to  go  further  and  bind  the 
land  itself,  which  was  sold  without  right  for  its  repayment. 
An  executor  has  no  power  to  dispose  of  lands  by  virtue  of 
his  office,  and  no  such  power  was   given  by  Mr.  Atwood't^ 
will  as  to  any  land  specitically  devised.     Whenever  he  un- 
dertakes to  meddle  with  lands  without  authority,  he  cannot 
l)ind   them    any    more   than    any    stranger.      The    owner, 
whether  devisee  or  otherwise,  is  in  no  way  affected  by  his- 
action,  which  is  void  for  all   purposes.     Heirs  or  devisees^ 
■  are  only  bound  by  what  he   does  legall3\     It  is  difficult  to^ 
see  how  the  case  can  be  affected  by  the  use  which  the  exec- 
utor made  of  the  money.     In  all  probate  sales,  valid  or  in- 
valid, the  officer  making  the   sale  receives  the  money  and 
usually  appropriates  it.     But  it  never  has  been  supposed* 
and  it  is  not  legally  true,  that  such  use  creates  any  lien  on 
the  premises  unlawfully  sold.     What  he  receives  ^vithout 
lawful  authority  does  not  concern  the  estate,  and  he  can  no 
more  create  a  lien  by  spending  that  money  than  by  spend- 
ing any  other.     If  the  estate  owes  him  he  must  pursue  hi< 
remedy  as  the  law  gives  it,   and  his   claim  must  tirst  l)e 
established  before  he   can  get  any  remedy.     The  use,  if 
made,  is  not  made  for  the  benefit  of  the  particular  piece  of 
land  that  he  attempted  to  sell,  but  for  the  whole  estate  ; 
and  if  it  becomes  a  claim,  it  is  a  claim  against  the  whole 
estate,  and  not  against  a  part  of  it."  ^     When  one  sees  in 
this  quotation  the  suggestion   that  the  application   of  the'' 
doctrine   of  subrogation   to    execution   and    judicial    sales 

1  Fro5t  V.  Atwood,  73  Mich.  G7,  16  Am.  St.  Kep.  500. 

188 


VOID  JUDICIAL  saij:s.  §   52 

••would  be  a  novelt}',"  he  rinds  difficulty  in  resisting  the 
suspicion  that  Rip  Van  Winkle,  nfter  his  long  sleep,  tired 
of  the  strange  scenes  and  faces  in  the  neighborhood  of  his 
boj'hood,  went  west,  became  interested  in  law  and  politics, 
and  rose  to  the  distinction  of  being  called  upon  to  write 
this  opinion. 

§  52.  Right  of  Purchasers  at  Execution  and  Chancery 
Sales  to  Subrogation,  Affirmed. — We  pass  now  to  the 
authorities  in  conflict  with  those  cited  in  the  preceding  sec- 
tion. From  these  authorities  it  will  be  seen  that  the  right 
of  purchasers  at  void  sales,  to  be  subrogated  to  the  claims 
they  have  discharged  by  their  payments,  is  very  generally 
recognized  in  this  conntry.  In  Kentucky,  a  slave  named 
Jack,  was  sold  under  execution  against  an  estate,  and  was 
purchased  by  Enos  Daniel.  The  slave  was  sul)se(|uently 
recovered  from  Daniel  in  an  action  of  detinue,  under  a  title 
paramount  to  that  of  the  decedent.  Daniel  then  com- 
menced a  suit  in  chancery  to  be  subrogated  to  the  rights  of 
the  holder  of  the  judgment  under  which  the  sale  had  been 
made.  The  case  was,  therefore,  one  in  which  the  title  had 
failed,  not  from  any  defect  in  the  sale  or  judgment,  but 
because  the  defendant  in  execution  was  not  the  owner  of 
the  property.  The  court,  nevertheless,  sustained  the  claim 
for  subroo-ation,'  savins:  "Admittino:  that  Enos  Daniel 
knew  that  Jack  belonged  to  Mary  ]McLaughlin,  and  was  not 
sul)ject  to  execution  against  the  estate,  this,  in  our  judg- 
ment, presents  no  legal  impediment  to  his  claim  upon  the 
estate  for  the  amount  of  Clark's  demand  paid  by  him.  The 
-lave  was  sold  as  the  property  of  the  estate,  under  the 
process  of  law;  he  purchased  him,  and  by  his  purchase  and 
execution  of  a  sale-bond  to  Clark  he  satisfied  and  extin- 
guished that  amount  against  the  estate  and  for  which  it 
stood  responsible.  And  according  to  the  princii)le  rei)eatcdly 
recognized  in  this  court,  he  has  an  e(|uitable  right  to  be 
-ul)stituted  in  place  of  the  creditor,  and  to  have  the  amount 


^     -,2  VOID    ,7U1M(IAL    SALKS. 

M)  paid  rofiindod  to  him  out  of  the  estate.     Ilis  eciuity  rests, 
not  upon  the  ground  of  his  want  of  knowledge  as  to  the  title 
of  llie  slave,  but  on  the  ground  of  his  having  discharged  a 
judo-nient  against  the  estate,  for  which  it  stood  chargeable, 
bv  a  purchase  of  jiropcrty  made  under  the  coercive  process 
(.f  the  hiw;   and,  therefore,  has  equitable  right  to  be  reim- 
))ursed  out  of  the  estate."'  ^     In  South  Carolina,  a  plaintiff, 
at  his  own  sale,  i)urchased  the  interest  of  the  defendant  in 
certain  personal  property.     There  were  older  writs  in  the 
hands  of  the  officer  making  the  sale,  and  the  proceeds  were 
exclusively  applied  to  those  writs.       The  sale  turned  out  to 
be  void.      The  plaintiff's  judgment  was  subsequently  paid; 
but  he  was  not  repaid  the  purchase  money,  which  had  been 
applied  to  the  extinction  of  elder  claims.     In  these  circum- 
stances   it  Avas  held  that  his  "claim   is   that  of  a  junior 
creditor,  who  has  paid  prior  debts,  and  he  must  be  sub- 
stituted in  the  place  of  the  senior  creditors,  and  subrogated 
to  all  their  rights."  -  In  Louisiana  and  Texas,  if  an  execution 
sale  is  void  for  some  irregularity  of  proceeding,  but  is  made 
under  a  valid  judgment,  and  the  proceeds  of  the  sale  are 
applied  to  the   satisfaction  of  the  judgment,  the  defendant 
cannot  recover  the  property  from  the  purchaser  without 
first  repaying  the  amount  paid  at  the  sale.-^     This  rule  may 
not  in  all  cases  be  just,  for  there  may  be  instances  in  which 
the   value    of  the  property    claimed    greatly  exceeds    the 
amount  for  which  it  was  sold  at  an  invalid  execution  sale, 
and  the  owner  may,  nevertheless,  not  be  able,  while  out  of 
possession  of  his  property,  and   especially   while  his  right 
thereto  is  not  established,  to  raise  moneys  with  which  to 
repay  the  sum  paid  by  the  purchaser.     If,  however,  by  the 

1  McLaughlin  v.  Daniel,  8  Dana.  183. 

-'  Bentley  v.  Long,  1  Strob.  Eq.  .52,  47  Am.  Dec.  523. 

"'  Howard  V.  Xorth,  ^^  Tex.  316,  51  Am.  Deo.  769;  Dufour  v.  Camfranc, 
11  Mart.  610,  13  Am.  Dec.  360.  To  the  same  effect,  Short  v.  Sears,  93 
Ind.  505;  McGee  v.  Wallis,  57  Miss.  638;  Freeman  on  Executions,  sec. 
352. 

190 


VOID    .lUDICIAL    SALES.  §     52 

judgment,  or  l)y  levy  of  the  writ  or  otherwise,  a  lien  ex- 
isted against  the  property  sold  under  execution,  it  is  entirely 
equitable  to  require  the  owner  to  reimburse  the  purchaser 
to  the  extent  to  which  by  his  purchase  he  released  the  lieu, 
and  on  the  owner's  failure  to  do  so  to  subrogate  the  pur- 
chaser to  the  lien,  and  to  permit  him  to  enforce  it;  and  this 
principle  is  as  applicable  to  execution  as  to  any  class  of 
judicial  sales. ^  If,  in  theattempted  assertion  of  an  execution^ 
it  is  necessary  that  the  judgment  creditor  discharge  some 
pre-existing  lien,  as  where  the  statute  requires,  as  a  condi- 
tion precedent  to  a  levy  on  mortgaged  chattels,  that  the 
execution  creditor  pa}'  the  mortgage  debt,  he  is,  though 
his  execution  lien  subsequently  proves  unavailing,  and  his 
title  to  the  chattels  so  far  as  based  thereon  ineffective,  en- 
titled to  be  subrogated  to  the  lien  of  the  mortgage  which 
he  has  thus  satisfied. ^ 

When  a  void  sale  is  made  under  proceedings  to  foreclose 
a  niortgnge,  there  seems  to  be  no  doubt  that  the  purchaser 
succeeds  to  the  title  and  rights  of  the  mortgagee,  and  may 
enforce  them  as  the  mortgagee  could  have  done,  but  for 
the  sale.-''  There  is  no  reason  why  the  rule  should  be 
specially  applicable  to  foreclosure  sales,  unless  it  be  the 
fact  that  they  are  based  upon  sonu'  lien,  which  is  by  them 
either  Avholly  or  partly  satisfied,  and  to  which  it  is  clear  the 
purchaser  may  e(juitably  be  silbrogated.  Every  other 
chancery  sale  may  give  rise  to  a  claim  which,  if  not  similar, 
is  at  least  equally  potent  with  equitable  considerations,  and 

'  .Short  V.  Sears,  93  Ind.  .")0.");  Cosgrove  v.  I\Ierz  (R.  1.),  37  Atl.  Hep. 
70-1 ;  Jones  v.  Smith,  .").")  'J'ex.  383;  Davis  v.  Gaines,  104  U.  S.  S8ti. 

2  Moore  v.  Calvert,  8  Okla.  358,  58  Pac.  Rep.  (527. 

"'  Brown  v.  Brown,  73  Iowa,  430;  Brobst  v.  Brock,  10  Wall.  510:  .lack- 
son  V.  Bowen,  7  Cow.  13;  Gilbert  v.  Cooley,  Walker's  Ch.  •494;  T/illi- 
brldse  v.  Tregent,30  Mich.  105;  Jordan  v.  Sayre,  29  Fla.  100;  Bruschke 
V.  Wright,  lot;  III.  183.  57  Am.  St.  Rep.  125;  Rogers  v.  Benton,  30  Minn. 
30,  12  Am.  St.  Rep.  G13;  Bailey  v.  Bailey,  41  S.  C.  337,  44  Am.  St.  J{f'i'- 
113;  Givens  v.  Carroll,  40  S.  C.  413,  42  Am.  St.  Rep.  SSO:  Hull  v.  Hull. 
35  W.  Va.  155,  20  Am.  St.  Rep.  800. 

191 


^    ;-)3  VOID    JUDICIAL    SALES. 

where  such  is  the  case  the  doctrine  of  subrogation  is  not 
less  applicable  than  to  foreclosure  sales.  Hence,  if  prop- 
ortv  is  sold  in  a  suit  in  partition  and  the  proceeds  of  the 
sale  reach  the  co-tenants,  they  Avill  not  be  granted  relief 
Moainst  it  though  they  were  infants  and  the  court  had  no 
jurisdiction  over  their  persons,  except  upon  the  condition  of 
refundino-  so  iiuich  of  such  proceeds  as  may  have  come  into 
their  hands. ^  On  the  same  principle,  if  the  propert}^  of  a 
corporation  is  directed  to  be  sold  and  is  sold  by  a  receiver, 
and  the  proceeds  applied  to  the  payment  of  its  obligations, 
the  ]nirchaser,  or  his  successor  in  interest,  if  the  receiver's 
sale  is  adjudged  to  be  void,  is  entitled  to  be  subrogated  to 
the  rioht  of  the  creditors  Avhose  claims  have  been  satistied 
bv  the  proceeds  of  the  sale.^  A  like  remedy  is  available  to 
one  who  purchases  property  at  a  void  trustee's  sale  under  a 
trust  deed  made  by  a  corporation,  if  the  i)roceeds  of  the 
sale  are  applied  to  the  satisfaction  of  its  liabilities. ^ 

§  53,  Right  to  Subrogation  AfHriued  in  Favor  of  Pur- 
ohasei's  at  Probate  Sales, — The  cases  in  which  the  equitable 
rule  of  subrogation  has  been  most  frequently  invoked  with 
success,  have  arisen  under  sales  made  by  administrators, 
executors  and  guardians.  Thus,  in  North  Carolina,  a  bill 
in  equity  was  tiled,  showing  that  a  sale  of  lands  had  been 
made  to  plaintiff  by  the  defendant,  as  executor;  that  in  a 
trial  at  law  the  sale  had  been  declared  void  for  want  of 
authority  in  the  executor  to  sell ;  that  the  purchase  money 
had  been  paid  to  the  defendant;  that  $108  of  this  mone}" 
remained  in  the  hands  of  the  executor,  and  the  balance 
thereof  had  been  applied  to  the  payment  of  the  debts  of  the 
testator.  The  bill  prayed  that  the  $108  be  refunded,  and 
that  as  to  the  balance  of  the  purchase  money  the  plaintiff 
might  stand  in  the  place  of  the  creditors  whose  claims  it 

1  Chambers  v,  Jones,  72  III.  275, 

-'  Mining  Co.  v.  Mining  Co,,  116  111,  170. 

"  Hart  v.  Brown,  77  III.  226;  Bonner  v,  Lepley,  61  Miss,  392, 

192 


VOID    JUDICIAL    SALES.  §    ^)o 

liad  satiisfied,  and  that  the  land  be  sold  for  the  payment 
thereof.     The  following  is  from  the  opinion  of  the  court : 
*'^The  claim  of   the  plaintiffs  to  be  substituted  to  the  cred- 
itors, whose  demands  they  have  satisfied,  is  supported,  we 
think,  by  well  settled  principles.     By  the  laws  of  this  State, 
real  as  well  as  personal  property  is  liable  for  debts  of  every 
description;  but  personal  property  is  the  primary  fund  for 
their  satisfaction.     It  is  alleged  that   the  personal   assets 
were  insufficient  for  the  discharge  of  all  the  debts.  Whether 
this  be  the  fact  or  not,  can  onh^  be  ascertained  by  taking  an 
account  of  the  assets  and  of  the  administration  of  them. 
If,  in  taking  the   account,  the  fact  should  be  established  as 
alleged,  then  it  follows,  from  the  doctrine  sanctioned  in  the 
cases  of  Williams  v.  Williams,^  and  Saunders  v.  Saunders,^ 
that  the  defendant  Dunn  would  have  a  right  in  a  court  of 
e<|uity  to  be  subrogated  to  those  creditors  who  have  been 
paid  by  his  advances.     As  between  Dunn  and  the  plaintiff, 
if  their  money  were  yet  in  his  hands  he  could  not  retain  it 
with   a  safe  conscience,  and  would  be  obliged  to  refund  it. 
And  it  seems  to  us  clear,  that  if  he  could  rightfully  reclaim 
it  from  his  co-defendants,  he  might  be  compelled  to  assert 
this  right,  or  permit  the  plaintiffs  to  assert  it  in  his  name, 
ill   order  that  it  might  be  refunded.     The  court    would  do 
this  upon  the  same  principle  by  which  the  surety,  on  mak- 
ing satisfaction  to  the  creditor,  becomes  entitled  to  demand 
every  means  of  enforcing  payment  which  the  creditor  him- 
self had  against  the  principal  debtor;    a  principle  which, 
when  traced  to  its  origin,  is  founded  on  the  plain  obligations 
of  humanity,  which  bind  every  one  to  furnish  to  another 
those  aids  to  escape  from  loss  which  he  can  pari  with  without 
injury  to  himself.      *     *     *     The  doctrine  of  substitution, 
which  prevails  in  ccjuity,  is  not  founded  on  contract,  but,  as 
we  have  seen,  on  the  principles  of  natural  justice.     I'luiues- 
tlonably,  the  devisees  arc  not  to  be  injured  by  the  mistake 

'  2  Dev.  Eq.  69,  22  Am.  Dec.  720. 
2  2  Dev.  Eq.  2G2. 

(13)  103 


^    .■)•)  VOID    .HDICIAL    SAT.ES. 

of  the  i>\o(ut()r.  :is  to  the  extent  of  his  power  over  their 
land:  hut  that  mistake  should  not  give  them  unfair  gains. 
The  executor  was  not  an  ofhcious  intermeddler  in  paying 
otf  the  (U'I)ts  of  the  testator,  and  his  erroneous  belief  that 
lie  eould  indemnity  himself  in  a  particular  Avay  should  not 
bar  him  from  obtaining  indemnity  by  legitimate  means.  It 
is  not  a  question  here,  whether  a  mistake  of  law  shall  confer 
any  rights,  but  whether  such  a  mistake  shall  be  visited  with 
a  forfeiture  of  rights  wholly  independent  of  that  mistake."  ^ 
In  the  case  of  Valle  v.  Fleming's  Heirs, ^  a  void  adminis- 
trator's sale  had  been  made,  and  the  proceeds  thereof  applied 
to  the  pavment  of  a  mortgage  existing  on  the  lands  sold. 
Ejectment  was  subsequently  brought,  to  which  the  purchas- 
ers filed  an  equitable  defense,  and  prayed  to  be  subrogated 
to  the  rights  of  the  mortgagees.  Judge  Napton,  in  deliver- 
ing the  opinion  of  the  court,  referred  to  the  equity  maxims, 
both  of  the  common  and  of  the  civil  law,  as  well  as  to  the 
decisions  of  the  American  courts,  and  concluded  as  follows: 
•'Nothing  could  be  more  unjust,  we  may  repeat,  than  to 
l)ermit  a  person  to  sell  a  tract  of  land  and  take  the  purchase 
money,  and^then,  because  the  sale  happens  to  be  informal 
and  void,  to  allow  him,  or,  which  is  the  same  thing,  his  heir, 
to  recover  back  the  land  and  keep  the  money.  Any  code 
of  law  which  would  tolerate  this  would  seem  to  be  liable  to 
the  reproach  of  being  a  very  imperfect,  or  a  very  inequitable 
one.  We  think  that,  upon  well  established  principles  of 
equity  law,  the  owner  of  the  land  should,  if  he  wishes  to  get 
it  back,  repay  the  purchase  money  which  he  has  received, 
or  which  he  will  receive,  if  he  gets  the  land.  This  may  be 
done  upon  the  compensation  doctrine  of  courts  of  equity, 
with  which,  as  it  is  settled  on  all  hands,  it  is  not  inconsistent, 
if  we  regard  the  claim  of  the  owner  under  such  cir- 
cumstances, as    the  Roman  law    treated  it,  as  a  case    of 

J  Scott  V.  Dunn,  1  Dev.  &  Bat.  Eq.  427,  30  Am.  Dec.  174,  and  note;- 
rerry  v.  Adam?,  98  X.  C.  107,  2  Am.  St.  Rep.  326. 
2  20  Mo.  152.  77  Am.  Dec.  557. 

194 


VOID    JUDICIAL    SA1,1>.  §     53 


fraud  or  ill  faith.  But  whether  this  equity  be  administered 
under  the  name  of  compensation,  or  by  substituting  the 
purchaser  in  the  place  of  the  creditors  whose  debts  he  has 
l)aid,  or  hv  givino-  him  the  benefit  of  the  mortgage  which 
his  money  has  paid  off,  is  not  material.  The  answer  put  in 
by  the  defendants  should  not  have  been  stricken  out,  and 
in  order  that  the  answer  may  l)e  reinstated,  and  the  case  may 
be  tried  upon  these  eipiitable  principles,  the  judgment  is 
reversed,  and  the  case  will  be  remanded."  ^ 

The  case  of  Blodgett  v.  Hitt^  discusses  more  thoroughly 
than  any   other  with  which   we  areTfamiliar  the  rights  of 
purchasers  under  void  probate  sales.     We  copy  so  much  of 
the  opinion  of  the  court  as  is  devoted  to  this-subject:    "The 
evidence  on  this  subject  is,  that  the  defendant  bid  off  the 
land  at  the  administrator's  sale  for[$365 ;   that  out  of  this 
sum  he  paid  the  Boyd  mortgage,  amounting  to  nearly  $2.")(), 
and  that  he  paid  the  balance  of  the  purchase  money  to  the 
administrator.     The  whole  of  the  purchase  money  was  aj)- 
})lied  to  the  payment  of  the  mortgage,  of  other  debts  against 
the  estate,   and  of  the  expenses  of  administration.     The 
land  in  question  stood  chargeable  with  the  payment  of  such 
mortsrao-e  debts  and  expenses.     The  pavments  made  bv  thc^ 
defendant,  on  account  of  his  purchase,  enured  to  the  benefit 
of  the  owners  of  the  land.     There  is  no  manner  of  doubl 
})ut  the  defendant  purchased  the  land,  and  paid  his  money 
therefor,    in  perfect  good    faith,    supposing  that  he   was 
obtaining  the  whole  title  thereto;   and  there  is  no  pretense 
that  he  had  any  actual  notice  of  the  defect  in  the  proceed- 
ino-s  before  the  sale,  which  invalidates  his  title.  The  (juestion 

'  Valle's  Heirs  v.  Fleming's  Heirs,  29  Mo.  164,  77  Am.  Dec.  r.:)7. 
Judge  Scott  dissented  in  a  vigorous  and  well  written  opinion,  saying, 
among  other  things  :  -"The  defendants  are  volunteers  and  strangers  in 
relation  to  the  plaintiffs.  No  man  can  make  another  his  debtor  without 
his  consent.  Nor  can  any  man  ])ay  a  debt  of  another  without  his  au- 
thority, and  claim  it  of  him.  This  is  an  important  primiple  necessary 
to  be  preserved,  and  it  is  one  which  has  had  its  inlluence  in  all  cases  in 
wliich  it  has  been  involved." 

-  20  Wis.  182. 

11)5 


^    :)3  \01l)    .IUI)IC[AL    SALE.S. 

then  is,  whotlicr,  under  Micli  circunistances,  the  defeiulant 
isontitledtc)  be  roi)nid  the  money  which  he  hjis  paid  in  good 
faith  to  relievo  the  hmd  from  incumbrances,  before  he  can 
\h'  turned  out  of  possession  thereof.  Suppose,  for  illustra- 
tion, that  the  liabilities  against  the  estate  of  Pearley  P. 
lilodgett,  after  the  personal  estate  was  exhausted,  were 
jiisl  ip^Go,  for  the  payment  of  which  the  land,  which  the 
administrator  attempted  to  convey  to  the  defendant,  was 
chargeable.  The  interest  of  the  heirs  of  Blodgett  in  the 
land  was  precisely  that  sum  less  than  a  full  and  perfect  title 
thereto;  that  is  to  sa}',  the  creditors  of  the  intestate 
owned  an  equitable  interest  therein  to  the  amount  of  $305, 
and  the  heirs  were  the  o\v'ners  of  the  residue.  Now,  when 
the  defendant,  supposing  in  good  faith  that  he  was  thereby 
obtaining  a  title  to  the  lands,  paid  those  debts  and  took  a 
conveyance  of  the  land  from  the  administrator,  and  when  it 
turns  out  that,  by  reason  of  the  failure  of  the  administrator 
to  perform  and  fulfill  an  essential  prerequisite  to  a  valid 
sale,  the  defendant  gets  no  title  by  such  conversance,  and 
the  heirs  recover  the  land,  it  must  be  admitted  that  there  is 
no  justice  in  giving  the  laud  to  heirs,  cleared  of  the  incum- 
brances which  the  defendant  has  [)aid,  without  requirinu' 
them  to  repay  the  sums  thus  paid  by  him  for  their  benetit. 
Otherwise,  the  heirs  would  recover  a  greater  interest  in  the 
land  than  they  inherited,  by  the  sum  of  $3G5,  and  the 
defendant  would  be  out  of  pocket  to  that  amount,  paid  by 
liini  for  their  benefit.  The  fact  that  the  purchase  money 
])aid  by  the  defendant  only  cancelled  a  small  percentage  of 
the  indebtedness  against  the  estate,  does  not  change  the 
juinciple.  But  the  question  is  not  alone — What  is  the  nat- 
ural and  inherent  justice  of  the  case?  but  it  is — Are  the 
principles  and  rules  of  equity  jurisprudence,  as  recognized 
and  enforced  by  courts  of  equity,  sufficiently  broad  and  com- 
l)rehensive  to  reach  the  case  and  compel  the  heirs  to  repay 
the  sums  which  the  defendant  has  thus  paid  for  their  benefit, 
before  they  will  be  permitted  to  take  possession  of  the  land 

196 


VOID    JUDICIAL    SALES.  §    ;»3 

in  controversy?  We  are  of  the  opinion  that  this  hitter 
<luestiou  must  be  answered  in  the  affirmative,  both  upon 
principle  and  by  authority.  A  ])rief  reference  will  be  made 
to  a  few  of  the  leading  cases,  wherein  it  has  been  so  held: 
"  Iludgin  V.  liudgin,!  was  a  case  where  a  i)eison,  bv  will, 
eharged  his  lands  with  the  payment  of  his  debts.  After  his 
death,  a  creditor  procured  an  order  from  the  ))roper  court 
for  the  .sale  of  some  i)ortion  of  the  lands  thus  made  charge- 
al)lc  with  the  debts  of  the  testator.  The  lands  were  sold, 
and  the  i)roceeds  applied  to  the  payment  of  such  debts. 
The  sale  and  conveA'ance,  executed  pursuant  tliereto.  were 
sul)se(|uently  held  void,  and,  in  ejectment  brought  by  >ome 
of  the  devisees  of  the  land  against  the  ])urchaser  at  such 
sale,  or  the  person  claiming  under  him,  the  devisee  recovered 
judgment.  The  defendant  in  the  ejectment  tiled  his  l)ill  in 
equity  and  oljtained  an  injunction,  restraining  proceedings 
upon  such  judgment,  and  upon  proof  of  these  facts  the 
court  of  appeals  of  \'irginia  directed  a  decree  declaring  the 
j)urchaaie  money,  so  paid  by  the  complainant,  or  his 
grantor,  on  such  void  sale,  and  the  interest  thereon,  after 
deducting  therefrom  th(!  rents  and  prolits  of  the  land  \\iiile 
(^)ceupied  by  the  i)urchaser  or  his  grantee  (exclusive  of  im- 
provements made  by  them  resj)ectively ),  to  be  a  charge  on 
the  land,  and  ))rovi(liiig  that,  unless  tiie  same  should  lie 
paid  by  the  devisees  within  a  reasonable  time,  the  hnul  !)«■ 
sold  for  the  satisfaction  thereof,  on  terms  to  be  prescribed 
for  the  purpose.  This  ease  is  decided  uj)on  the  principles 
that  the  purchaser,  whose  money  has  |)aid  the  iueuinl)ranees 
ui)on  the  land,  has  the  right  to  I)e  substituted  to  the  rights 
of  the  creditor  whose  debt  he  has  paid:  and,  because  e(|uity 
will  Ui>\  ))erniil  such  creditor  oi"  incumbrancer,  lawfulh  in 
possession,  to  be  disturlx'd  therein  until  his  debt  or  incum.- 
bi-anc(!  is  fullv  satistic(].  ji  will  not  pei'uiit  su<'h  purchaser, 
who  has  paid  llic  iii<iiin!)|-an<'c  in  'jnml  t'ailli.  and  i>  ihercliy 

'  C.  (;r;itt.  :?2U,  :>2  Am.  I»ec.  l_'l. 

i:i7 


^     r,o  \OU>    .lUDlCIAL    SALES. 

subroiintodlo  the  rights  of  the  creditor,  to  be  dispos.^essed 
until  he  is  reiinbiirsed  for  the  moneys  so  paid  by  him. 

"Vjille's  Heirs  v.  Fleming's  Heirs/  is  to  the  same  effect. 
This  is  a  vorv  im[)ortant  and  interesting  case,  and  will  jus- 
tify  a  somewhat  extended    notice.     The  action  was  in  the 
imiure   of    ejectment.     The   plaintiffs   claimed,  as  heirs  of 
\  allc.  who  died    seized  of  the  lands  in  controversy    in  the 
action.     The  defendants  were   in  possession  under  certain 
conveyances,  executed  to  their  ancestor  and  his  grantors  by 
the  administrators  of  the  estate  of  Valle,  pursuant  to  a  sale 
of  the  land  under  an  order  of  the  proper  court.       In   a 
former  litigation  these  conveyances  had  been  adjudged  to 
be  null    and  void  by  the  supreme  court  of  Missouri.     In 
their  answer  the  defendants  alleged,  as  an  eciuitable  defense 
and  counterclaim,  that  their  ancestor  and  his  grantors  pur- 
chased the  lands  in  good  faith,  and  paid  therefor  $50,000, 
which  moneys  the  administrators  applied  to  the  payment 
and  satisfaction  of  a  mortgage  upon  said  lands,  and,  per- 
haps, other  lands  of  which  Valle  died  seized.     The  defend- 
ant claimed  that,  notwithstanding  the  apparent  and  tech- 
nical payment  and  extinguishment  of  such  mortgage,  equity 
would,  under  the   circumstances,  treat  it  as  still  subsisting 
and  unsatisfied,  for  the   protection  of  the  purchasers  from 
the  administrators,  or  their   grantees,  and  would  subrogate 
such  purchasers  or  grantees  to  all  of  the  rights  of  the  mort- 
gagee,  treating  them   as  assignees   and  purchasers  of  the 
mortgage,  for  a  valuable  consideration  by  them  paid.    They 
also  claimed  that  they  were,  in  fact  and  in  equity,  in  pos- 
session of  the  land  in  controversy  as  assigns  of  said  mort- 
gage, and  fully  entitled  to  set  up  the  same  against  any  per- 
son attacking  their  rights  or  possession  thereto.    The  court 
l)clow  rejected  these  views  of  the  case,  and  struck  out  from 
the  answer  such    equitable  defense  and  counterclaim;  but 
the  supreme  court  reversed  the  judgment  below  for  that 
reason,  and  in   a    very   able  opinion   by  Judge  Napton,  a 

'  '2U  Mo.  l.Vi,  77  Am.  Dec.  557. 

198 


VOID    JUDICIAL    SALK.^.  §    53 

majority  of  the  court  fully  sustain  tlietbeoiy  of  the  defend- 
ants, and  they  were  entitled  to  the  equitable  protection  of 
the  court  as  mortgagees  in  possession  under  an  unpaid 
mortgage,  and  that  their  possession  could  not  be  disturbed 
until  an  account  should  be  taken  and  the  sum  ascertained 
to  be  equitably  due  to  them  on  the  mortgage  full}-  paid.  In 
that  case  Judge  Scott  delivered  a  dissenting  opinion ,  wherein 
he  claims  that  the  views  of  the  majority  of  the  court  are 
unsustained  b}'^  the  cases ;  that  the  decision  creates  a  new 
equity,  or  rather  injects  a  new  principle  into  the  equity 
jurisprudence  of  the  country;  and  further,  that  the  defend- 
ant's ancestor  and  his  grantors,  who  paid  their  money 
under  a  void  sale  and  conveyance,  were  mere  volunteers ; 
and,  because  a  man  may  not  pay  the  debt  of  another  with- 
out his  authority  and  claim  it  of  him,  the  learned  judge 
<;oncludes  that  the  defendants  (who  had  succeeded  to  all  of 
the  rights  of  the  original  purchasers)  could  not  be  subro- 
gated to  the  rights  of  the  mortsfaoee.  and  recover  of  the 
heirs,  or  out  of  the  land,  the  money  which  was  thus  volun- 
tarily paid  on  a  void  conveyance.  It  is  believed  that  both 
these  positions  are  untenable.  That  this  is  no  new  equity 
— one  first  recognized  and  asserted  in  that  case — is  abund- 
antly shown  by  a  reference  to  the  cases  cited  in  the  major- 
ity opinion.  Some  of  those  cases  will  be  hereinafter  men- 
tioned. Again,  the  lands  having  been  purchased  of  the 
administrator  in  good  faith,  and  at  a  sale  which  had  been 
ordered  to  be  made  by  the  })roi)er  court,  and  the  purchasers 
having  paid  a  valuable  consideration  for  the  land,  in  the 
belief  that  they  were  obtaining  a  good  title  thereto,  it  can- 
not be  said,  in  any  reasonable  or  just  sense,  that  they  were 
mere  volunteers.  On  the  contrary,  they  paid  their  money 
at  the  request  and  by  the  procurement  of  the  administra- 
tors: and  inasmuch  as  the  administrators  were  charged  by 
law  with  the  duty  of  converting  the  assets  and  paying  the 
^Icbt,  it  may  well  be  held  that  tliey  were  the  representatives 
■<»f  the  heirs,  to   the    extent    thiit    the    latter    shduld    beheld 

1  !i!i 


§    ai)  \(MI)    .irOIClAL    SALES. 

hound  l)v  such  ioi|uo>t,  nud  should  not  be  hoard  to  alle<>e 
that  tlic  jHirchasors.  whose  money  went  to  pay  the  incum- 
brance upon  the  hmd,  were  mere  volunteers.  The  judue 
nlso  speaks  of  the  distinction  between  trusts  and  powers, 
and  savs  that  because  the  administrators  have  nothing  but 
sk  mere  power,  without  an  interest,  the  hmd  cannot  be 
aifected  by  their  convcAance  thereof,  unless  the  power  is 
executed  pursuant  to  the  terms  of  the  statute  by  which  it  is 
«-onferred.  In  this  the  learned  judge  is  doubtless  correct, 
as  he  would  have  been  had  he  said  further,  that  where,  as 
in  that  case,  a  j^owei'  is  created  by  law,  e<|uity  will  not  re- 
lieve against  a  defective  execution  of  it.  But  the  result  of 
these  princi[)les  is,  not  that  a  purchaser  in  good  faith  at  an 
administrator's  sale  is  not  entitled,  in  a  case  where  the 
conveyance  to  him  has  been  adjudged  void,  to  be  repaid 
by  the  heir,  or  out  of  the  land,  the  money  paid  by  him  for 
such  void  convej^anco,  and  applied  in  pavmentand  satisfac- 
tion of  incumbrances  upon  the  estate,  but  only  that  the 
power  havi)ig  been  defectively  executed  the  conveyance  is 
void,  and  a  court  of  equity  has  no  jurisdiction  or  authority 
to  heal  the  defect  and  make  it  valid. 

"The  foregoing  case  was  decided  mainlj^  upon  the  author- 
ity of  the  case  of  Bright  v.  Boyd.^  This  is,  perhaps,  the 
leading  case  on  the  question  under  consideration.  Boyd, 
the  defendant,  had  recovered  judgment,  in  an  action  of 
ejectment,  for  certain  premises  in  the  possession  of  Bright, 
the  com])lainant,  whereupon  Bright  tiled  his  bill  in  equity 
against  Boyd,  alleging  that  he  was  in  possession  of  the 
premises  in  controversy,  by  intermediate  conveyances  from 
the  administrator,  with  the  will  annexed  of  the  estate  of 
John  P.  Boyd,  the  father  of  defendant,  but  that  the  title 
under  the  administrator's  deed  had  failed,  or  rather  that 
the  same  conveyed  no  title  by  reason  of  the  failure  of  the 
administrator  to  comply  with  certain  requirements  of  the 
law,  which  were  held  to  be  essential  to  the  validity  of  the 

J  1  Story.  47S.  and  2  /b.  (H)."). 

200 


A'OID    .lUDlCIAL    SALES.  §    Oo 

•sale;  ;ind  that  the  coinplainant,  or  those  under  whom  he 
olaimcd  in  good  faith,  and  believing'  that  the  deed  from 
the  administrator  conveyed  a  oood  title  to  the  premises, 
had  made  valuable  and  permanent  improvements  thereon. 
The  object  of  the  bill  M^as  to  make  the  value  of  such 
improvements  a  charge  upon,  and  to  enforce  payment 
therefor  out  of  the  premises  which  the  defendant  had 
recovered  in  the  ejectment  suit.  The  defendant,  Boyd, 
made  title  to  the  land  as  devised  under  the  will  of  his  father. 
On  proof  of  these  allegations  Justice  Story,  before  whom 
the  cause  was  heard,  after  great  deliberation  and  research, 
gave  the  complainant  the  relief  praAed  in  the  bill,  and.  in 
the  absence  of  any  statutory  provision  on  the  subject,  held 
the  broad  doctrine  that,  'a  bona  fide  purchaser  for  a  valu- 
able consideration,  without  notice  of  any  defect  in  his  title, 
who  makes  improvements  and  meliorations  upon  the  estate, 
has  a  lien  or  charge  thereupon  for  the  inci'eased  value 
which  is  thereby  given  to  the  estate  beyond  its  value  with- 
out them,  and  a  court  of  equity  will  enforce  the  lien  or 
charofc  acrainst  the  true  owner,  who  recovers  the  estate  in  a 
suit  at  law  against  the  purchaser.' 

"The  principle  there  asserted  is  precisely  the  same  as 
that  involved  in  the  (jueation  under  consideration  in  tliis 
case.  In  both  cases,  if  the  land  is  held  chargeable,  it  is 
because  the  money  of  the  [)urchaser  under  the  void  sale  has 
been  paid  in  good  faith,  and  expended  to  increase  the  value 
of  the  estate.  It  is  (|uite  immaterial  whether  this  was  done 
by  [)aying  off  incumln'anccs,  or  by  nuiking  permanent  and 
valuable  improvements.  In  either  case,  the  value  of  llic 
inheritance  is  increased  by  the  expenditure,  and,  as  already 
observed,  the  })lainest  principle  of  justice  demands  that  llie 
heir  or  devise(!  should  repay  the  money  thus  iiuHjcently 
expend(!d  for  his  benefit,  to  the  extent  that  he  has  been 
IxMiefitcfl  therel)v.  The  opinion  of  dudiic  Sloi-y,  in  Ibii^lil 
V.  15oyd,  is  exc(!edingly  learned  and  able,  and  will  well  rei)ay 
careful  perusal  and  sin<ly.      lletrare-    the   prin.iple    which 

201 


^    ;,3  VOID    .IIDICIAL    SALES. 

lu'  applied  there  to  the  Koinan  law,  and  shows  that  it  has 
l)(>on  adopted  into  the  hiws  of  all  modern  nations  which 
(l(>iivr  their  jurisprudence  from  the  Roman  law,  and 
(KMuonstrates,  by  reference  to  the  writings  of  Cujacius, 
Hothier,  (h-otius,  Bell,  Pufeendorf,  Rutherforth,  and  others, 
and  bv  argmnents  which  seem  conclusive  of  the  question, 
that  'such  principle  has  the  highest  and  most  persuasive 
equity,  as  well  as  common  sense  and  common  justice,  for 
its  foundation.'  We  are  not  aware  that  the  authority  of 
that  case  has  ever  been  shaken,  or  its  correctness  ever  suc- 
cessfully assailed. 

"Before  dismissing  the  case  of  Bright  v.  Boyd  from  our 
(•onsideration,  I  may  be  permitted  to  transcribe  a  passage 
from  the  opinion,  to  show  how  identical  in  principle  that 
case  is  with  the  present  one,  and  also  to  show  the  views  of 
the  eminent  jurist  who  wTote  the  opinion  upon  the  precise 
([uestion  involved  in  this  case.  Judge  Story  there  says 
that  'it  cannot  be  overlooked  that  the  lands  of  the  testator 
now  in  controversy  were  sold  for  the  payment  of  his  just 
debts,  under  the  authority  of  law,  although  the  authority 
was  not  regularly  executed  by  the  administrator  in  his 
mode  of  sale,  by  a  non-compliance  with  one  of  the  prereq- 
uisites. It  was  not,  therefore,  in  a  just  sense,  a  tortious 
sale;  and  the  proceeds  thereof ,  paid  by  the  purchaser,  have 
gone  to  discharge  the  debts  of  the  testator,  and,  so  far,  the 
lands  in  the  hands  of  the  defendant  (Boyd)  have  been 
relieved  from  a  charge  to  which  they  were  liable  by  law. 
So  that  he  is  now  enjoying  the  lands  free  from  a  charge 
which,  in  conscience  and  equity,  he,  and  he  only,  and  not 
the  purchaser,  ought  to  bear.  To  the  extent  of  the  charge 
from  which  he  has  been  thus  relieved  by  the  purchaser,  it 
seems  to  me  that  plaintiff,  claiming  under  the  purchaser,  is 
entitled  to  reimbursement,  in  order  to  avoid  circuity  of  ac- 
tion, to  get  back  the  money  from  the  adiministrator,  and 
thus  subject  the  lands  to  a  new  sale,  or,  at  least,  in  his 
fa^■()r,  in  equity  to  the  old  charge.     I  confess  nn^self  to  be 

202 


VOID    JUDICIAL    SALES.  §    53 

unwilling  to  resort  to  such  a  circuity  in  order  to  do  justice, 
where,  upon  the  principles  of  equity,  the  merits  of  the  case 
can  be  reached  by  affecting  the  lands  directly  with  a  charge 
to  which  they  are  ex  ceqiio  c(  bono,  in  the  hands  of  the 
present  defendant,  clearly  liable. '^ 

"After  what  has  been  already  said,  concerning  the  rule 
of  the  civil  law  on  this  subject,  we  should  expect  to  find  the 
courts  of  Louisiana  asserting  and  enforcing  that  rule. 
Accordingly,  we  find,  in  Dufour  v.  Canifranc,-  the  follow- 
ing language:  'It  has  been  proved  that  the  proceeds  aris- 
ing from  the  sale  of  the  slaves  were  applied  to  the  dis- 
charge of  the  judgment  debts  of  the  plaintiff,  and  the 
court  is  of  opinion  that  he  cannot  recover  in  the  suit  until 
he  repa}^  that  monev.  »  *  «  Nothing  could  be  more 
unjust  than  to  permit  a  debtor  to  recover  back  his  prop- 
erty because  the  sale  was  irregular,  and  yet  allow  him  to 
profit  by  that  irregular  sale  to  pay  his  debts.'  It  will  be 
readily  inferred  from  the  foregoing  extracts,  that  the  ac- 
tion was  brought  to  recover  certain  slaves,  which  the  de- 
fendant had  purchased  at  a  sheriff's  sale  upon  an  execution, 
which  sale,  it  was  afterwards  held,  was  void  and  trans- 
ferred no  title  to  the  slaves  to  the]  purchaser,  but  the  pro- 
ceeds of  the  sale  went  to  pay  judgment  debts  against  the 
l)laintiff.  *  *  *  ^^yQ  hold,  therefore,  that  the  whole 
purchase  money,  paid  by  the  defendant  for  the  land  in  con- 
troversy-, and  the  interest  thereon,  less  the  mcfiue  profits  of 
the  land  (exclusive  of  the  improvements  placed  thereon  by 
him)  during  his  occupancy  thereof,  is  a  lien  and  charge 
upon  the  land,  and  that  the  plaintiffs  cannot  have  restitu- 
tion of  the  land  claimed  by  them  until  the  aiuounl  of  such 
lien  and  charge  is  j)aid."'' 

The  more  recent  decisions  ha\'e  been  in  favor  of  recog- 
nizing and  enforcing  the  claims  of  purchasers  at  void  sales, 

'  1  story.  lOH. 

-  11  Martin,  mi  (2  Cond.  I/i.  Reports,  234),  i:;  Am.  Dec.  'MV\. 

'■'■  lilodgetl  V.  Ilitt,  2I>  Wis.  1.S2.     The  following  cases  are  in  liarniony 

2o;; 


S     5;i  VOID    .IIDICIAJ.     SALKS. 

hv  whose  piu-chiisc  moneys  liuvc  l)eeii  realized,  aiul  when 
irali/ed  have  been  ai)i)lied  in  payment  of  liens  upon  the 
propcM-U  purchased,  or  of  elainis  which,  though  not  secured 
by  anv  specific  lien,  were  enforceable  against  the  assets  of 
the  estate,  and  for  the  payment  of  wdiicli  the  lands  in  con- 
troversy might  have  been  sold.  The  heirs  will  not  be 
pcrmiHed  to  recover  the  property  unless  they  reimburse 
the  i)urchaser  for  the  moneys  paid  by  him,  and  which  have 
benefited  them  by  discharging  claims  against  the  estate.^ 
Probably  the  only  dissent  from  this  proi)osition  now  is  con- 
fined to  those  cases  in  which  the  proceeds  of  a  probate  sale 
are  applied  b}^  the  executor  or  administrator  to  the  satis- 
faction of  claims  against  the  estate  of  the  decedent  which 
are  not  of  themselves   liens.     Thus,  it   was  determined    in 

wilh  the  one  jiistoited:  Bright  v.  Boyd,  2  Story,  C.  C.  605;  Mobr  v. 
Tulip.  40  Wis.  06;  Grant  v.  Loyd.  12  S.  &  M.  191 ;  Levy  v.  Riley,  4  Or. 
392;  Short  v.  Porter.  44  Miss.  533;  Williamson  v.  Williamson,  3  S.  &  M. 
715,  41  Am.  Dec.  630;  Douglas  v.  Bennett.  21  Miss.  680;  Hudgin  v. 
lludgin,  6  Gratt.  320,  52  Am.  Dec.  124;  Winslovv  v.  Crowell,  32  Wis. 
039;Dunbarv.  Creditors,  2  La.  Ann.  727;  Stockton  v.  Downey,  6  La.  Ann. 
.581;  Riigland  v.  Green.  14  S.  &  M.  194.  "If  the  sale  be  void  or  voida- 
ble, the  lien  of  the  administrator  continues;  and  it  would  seem  equita- 
ble that  the  purchaser,  who  has  paid  the  debts  of  the  estate,  should 
have  a  lien  on  the  estate  for  his  purchase  money."  Haynes  v.  Meeks,  10 
(Jal.  110,  70  Am.  Dec.  703.  A  purchaser  has  no  claim  against  the  heirs 
nor  their  estate  for  purchase  money  which  he  fails  to  show  has  been 
applied  for  their  benefit.  Jane  v.  Boisgerard,  39  Miss.  796.  In  Illi- 
nois, if  application  is  made  to  a  court  of  equity  to  set  aside  a  sale,  the 
relief  will  not  be  granted,  unless  the  complainants  do  equity  on  their 
part,  and  refund  so  much  of  the  purchase  money  as  may  have  come  into 
their  possession.  Chambers  v.  -Jones,  72  111.  275.  If  the  money  paid  by 
the  purchaser  has  been  applied  to  the  extinguishment  of  liens  on  the 
property  purchased,  he  is  entitled  to  be  subrogated  to  such  liens.  Kin- 
ney V.  Knoebel.  51  111.  112.  But  where,  in  a  probate  sale,  the  money  ig 
paid  to  discharge  debts  not  secured  by  any  specific  lien,  the  purchaser 
is  without  redress.    Bishop  v.  O'Connor,  51  111.  437. 

'  Shafer  v.  Causey,  8  Mo.  App.  142,  76  Mo.  365;  Jones  v.  Manly,  .58 
Mo.  559;  Evans  v.  Snyder,  64  Mo,  517;  Sharky  v.  Bankston,  30  La.  Ann. 
891;  Hatcher  v.  Briggs,  6  Or.  31;  Sands  v.  Lynham,  27  Gratt.  291,  21 
Am.  Rep.  348;  Snider  v.  Coleman,  72  Mo.  568;  Davis  v.  Gaines,  104  U. 
S.380;  Barrelli  v.  Ganche,  24  La.  Ann.  324;  Gaines  _v.  Kennedy,  53 

204 


VOID    .ILDICIAL    SALKS.  §     ')'o 

Bishop  V.  O'Connor/ that  the  purchaser  at  a  void  adminis- 
trator's sale  was  not  entitled  to  subrogation,  though  the 
})roceeds  of  the  sale  were  applied  to  the  satisfaction  of 
claims  against  the  decedent,  on  account  of  which  the  cred- 
itors might  have  compelled  a  sale  of  his  real  property.  It 
was  said  that  it  was  not  accurate  to  sa}-  thai  the  realty  was 
charged  with  the  payment  of  debts  but  rather  that  it  was 
so  chargeable  only  in  the  time  and  manner  prescribed  by 
the  statute;  that  a  purchaser  must  in  such  cases  be  regarded 
as  a  mere  volunteer:  that  he  was  subject  to  the  maxim 
rareaf  empt(ji\  and,  having  apparently  disregarded  it,  must 
suffer  for  his  io\\\ .  Perhaps  something  like  this  was  what 
the  supreme  court  of  Michigan  intended  to  affirm  in  Frost 
V.  Atwood.-  However  this  may  be,  we  think  it  safe  to  de- 
clare that,  except  in  Illinois  and  Michigan,  it  is  by  no 
means  essential  to  u  claim  for  subrogation  on  the  part  of  a 
l)urchaser  at  an  executor's,  administrator's  or  guardian's 
sale,  that  the  moneys  resulting  from  the  sale  be  applied  to 
the  satisfaction  of  a  demand  constituting  a  lien  against 
the  propertv  sold.  It  is  suffilcient  that  the  creditors,  though 
thcv  had  no  lien  against  any  s[)ecific  property,  were  entitled 
to  proceed  in  the  court  having  jurisdiction  of  the  estate,  or 

Miss.  103;  Hill  V.  Billingsly.  .53  Miss.  Ill:  McGee  v.  Wallis,  57  Miss. 
(;3S;  .Joiiet  v.  Mortimer,  29  Ln.  Ann.  207;  Davidson  v.  Davidson,  2S  La. 
Ann.  260:  Bland  v.  Bowel,  .")3  Ala. ■152:  Goodman  v.  Winter,  64  Ala. 
■J  10:  Robert-^ on  v.  Bradford.  73  Ala.  110;  Ellis  v.  EUi.*.  S4  Ala.  348: 
Duncan  v.  Garney.  108  Ind.  57t);  Wilson  v.  Holt,  S3  Ala.  .'>2S,  3  Am.  St. 
Rep.  768;  Stults  v.  Brown.  112  Ind.  370,  2  Am.  St.  Rep.  I'JO;  Terry  v. 
Adams,  9S  X.  C.  167,  2  Am.  St.  Rep.  326;  Pool  v.  Ellis,  64  Miss.  555; 
Davis  V.  Reaves.  7  Lea,  585;  Catchcart  v.  Sugenlieiner.  18  S.  C.  123; 
Levy  V.  Martin.  48  Wis.  198;  Crippen  v.  Cliappel,  35  Kan.  495,  57  Am. 
l{ep.  187;  Bond  v.  Montgomery,  56  Ark.  563,  35  Am.  St.  Rep.  119; 
Bruschke  v.  AVright,  166  111.  183,  57  Am.  St.  Rep.  125:  Milburn  v.  Phil- 
lips. 145  Ind.  93.  52  Am.  St.  Rep.  403;  Pool  v.  Ellis,  64  Miss.  5.55;  Cun- 
ningham v.  Anderson,  107  Mo.  371.  28  Am.  St.  Rep.  417;  Bailey  v- 
I'.ailey,  41  S.  C.  337,  44  Am.  St.  Rep.  713:  Hull  v.  Hull.  3.5  W.  Va.  155, 
29  Am.  St.  Rep.  .^00. 

1  69  III.  431. 

■^  73  Mich.  67,  16  Am.  St.  Rep.  .560. 

20j 


§    54  VOID    JUDICIAL    SALKS. 

in  some  other  competent  tribunal  to  compel  the  sale  of  the 
property  in  (luestion  for  the  satisfaction  of  their  claims.  If 
so,  he  who  has  so  satistied  them,  though  by  his  purchase  at 
a  void  sale,  is  entitled  to  be  put  in  the  place  of  the  credit- 
ors and  to  assert  the  remedy  which,  but  for  the  sale  and 
payment,  they  might  have  asserted.  In  equity,  the  claims 
thus  paid  must  be  regarded  as  still  existing,  and  the  pur- 
chaser as  being  the  assignee  thereof,  and  as  such  "entitled 
to  bq  subrogated  to  all  the  rights  of  the  original  holders  of 
such  debts  according  to  their  respective  priorities,  in  the 
sanu^  manner  and  to  the  same  extent  that  the  administrator 
would  have  if  he  had  advanced  and  used  his  own  money  in 
the  payment  of  the  debts  in  question."  ^  Speaking  of  a 
purchase  at  a  void  administrator's  sale,  the  supreme  court 
of  North  Carolina  said :  "The  plaintiff,  however,  under- 
took to  purchase  the  land,  so  far  as  appears  in  good  faith, 
and  to  the  extent  that  the  money  he  paid  to  the  adminis- 
trator was  applied  to  the  payment  of  debts  of  the  intestate 
and  the  costs  of  administration  that  the  personalty  was 
insufficient  to  pay,  to  that  extent  he  relieved  the  land  in 
(question,  and  is  entitled  to  be  subrogated  to  the  rights  of 
creditors,  whose  debts  and  costs  were  so  paid,  and  to  have 
the  sum  of  money  due  him  charged  upon  the  land."^ 

§  o4.  Rigbt  to  Subrogation,  TVbether  Exists  Only  in 
Favox*  of  an  Innocent  Purcbaser. — It  is  a  familiar  princi- 
ple, that  whoever  seeks  equity  must  come  with  clean  hands. 
Nearly  all  the  cases  in  which  relief  has  been  granted  to 
purchasers  at  void  sales  have  proceeded  upon  the  express 
ground  that  the  purchaser  had  acted  in  good  faith,  and  in 
ignorance  of  the  irregularity  by  which  his  title  was  impaired. 
Certainly  in  all  such  cases  the  purchaser's  good  faith  ought 

>  Derneau  V.  Garney,  lOS  Ind.  579;  Stultz  v.  Brown,  112  Ind.  370,  2 
Am.St.  Kep.  190. 

-  Perry  v.  Adams,  98  N.  C.  167,  2  Am.  St.  Rep.  326.  To  substantially 
the  same  effect  see  Hunter  v.  Hunter,  58  S.  C.  382,  79  Am.  St.  Rep.  845; 
Bond  V.  Montgomery,  56  Ark.  563,  35  Am.  St.  Rep.  119. 

20  G 


VOID    JUDICIAL    SALES.  §    54 

to  be  regarded  as  material.  In  Pennsylvania  and  Texas,  if 
a  purchaser  is  guilty  of  a  fraud,  on  account  of  which  his 
purchase  is  adjudged  void,  he  cannot  reclaim  his  purchase 
money.  He,  in  effect,  forfeits  it  to  those  whom  he  sought 
to  defraud,  for  they  may  retain  the  money  and  recover  the 
estate.^  In  Mississippi,  on  the  other  hand,  a  fraudulent 
purchaser  may  assert  the  same  equities  as  one  who  has 
acted  in  good  faith. ^  It  is  true  that  in  many  of  the  decis- 
ions affirming  the  right  to  subrogation,  the  purchaser  in 
whose  favor  it  was  affirmed  was  spoken  of  as  havino-  acted 
in  good  faith,  and  sometimes  as  being  ignorant  of  the  defect 
on  account  of  which  his  title  was  found  to  be  invalid.  AVhen 
there  is  actual  fraud  on  the  })art  of  a  purchaser  he  mav 
doubtless  be  denied  relief,  as  already  suggested,  on  the 
ground  that  he  does  not  come  into  equity  with  clean  hands, 
but  if,  as  some  of  the  decisions  indicate,  the  right  to  sul)ro- 
gation  depends  on  the  ignorance  of  the  purchaser,  then 
there  is  introduced  in  such  cases  a  new  and  strange  issue 
involving  the  mental  capacity  or  the  opportunities  for  in- 
formation possessed  by  the  purchaser.  The  whole  doctrine 
may  be  rendered  practically  inoperative  on  the  ground  that 
each  person  is  chargeable  wi.th  knowledge  of  the  law,  and, 
notice  of  the  proceedings  under  which  he  claims  title,  and 
therefore,  may  be  denied  relief  on  the  ground  that  he  was 
actually  or  constructively  informed  both  of  the  law  and  the 
facts,  and  hence  not  entitled  to  the  interposition  of  ecjuity. 
Thus,  in  Gerber  v.  Upton -^  it  was  conceded  that  a  purchaser 
at  an  administrator's  sale  paid  the  full  value  of  the  })roperty 
after  an  announcement  that  a  perfect  title  thereto  would  be 
sold  and  conveyed,  and  that  the  sale  was  ordered  for  the 
purpose  of  raising  money  with  which  to  satisfy  a  mortgage, 

I  McCaskey  v.  Graff,  23  Pu.St.  321,  62  Am.  Dec.  33(i;  (Jilbeit  v.  Hoff- 
man, 2  Watts,  ()<;,  2^;  Am.  Dec.  103;  Jackson  v.  Summerville.  13  I';i.  St. 
359;  Elam  v.  Donald.  .".8  Tex.  31(;. 

'■f  Grant  V.  Loyd,  12  S.  &  ^l.  l!*!. 

••'  123  Mich.  «0r,. 

207 


>;    :)4  VOID    JUDICIAL     SALES. 

but  there  being  certain  lioniesteud  interests  which  did  not 
pass  by  the  sale,  it  was  said:  "We  do  not  believe  that 
complainant  is  in  position  to  be  subrogated  to  the  rights  of 
the  mortgagee.  lie  is  presumed  to  know  the  law,  and, 
therefore,  to  have  known  at  the  time  that  defendant  had  no 
riijht  to  thus  contract  away  her  children's  homestead."  So 
in  Huse  v.  Den'  while  the  decision  of  the  court  might  have 
been,  and  to  some  extent  was,  rested  on  other  grounds,  it 
>:iid :  "When  one  purchases  land  at  a  void  judicial  sale,  in 
entire  ignorance  that  it  is  void,  and  in  good  faith  pays 
money  thereon,  which  is  applied  to  the  satisfaction  of  a  lien 
or  incumbrance  upon  the  land,  it  has  been  held  in  some 
cases  that  he  should  be  put  in  the  place  of  the  creditor,  to 
the  extent  at  least  that  his  money  has  satisfied  the  lien. 
But  in  the  case  at  bar  the  purchasers  knew  of  the  deed  of 
trust  and  the  will:  knew  of  the  want  of  power  of  the  ex- 
ecutors to  sell  without  an  order  of  the  probate  court;  were 
warned  not  to  purchase  without  the  order  and  sanction  of 
said  court,  and  purchased  in  the  face  of  this  knowledge  and 
caution.  They  were  not,  therefore,  ignorant  purchasers  in 
good  faith  to  whom  the  doctrine  of  subrogation  would,  under 
any  circumstances,  apply."  It  should  be  remembered  re- 
specting the  case  cited  from  Michigan,  that  the  courts  of 
that  State  are  reluctant  to  concede  the  right  of  subrogation 
to  purchasers  at  execution  or  judicial  sales,  and  that,  as  to 
the  opinion  of  the  Cahfornia  court,  it  was  rested  on  the 
additional  ground  that  the  proceeds  of  the  sale  had  not  been 
paid  to  the  heirs,  but  to  the  executors  and  trustees,  "who 
used  the  monejMndiscriminately  with  other  moneys  received 
from  sales  of  personal  property  and  other  lands  for  various 
purposes."  We  cannot  concede  that  the  right  to  subroga- 
tion can  be  made  to  depend  upon  the  purchaser's  ignorance 
(if  the  law  or  of  the  facts  on  account  of  which  the  sale  must 
be  declared  void.  In  nearly  all  of  the  numerous  cases  here- 
tofore cited  by  us  the  facts  rendering  the  sale  void  might 

^  85  Cal.  390. 

208 


VOID    JUDICIAL    SALES.  §    5') 

have  been  discovered  by  an  attentive  examination  of  the 
proceedinprs  resulting  in  the  sale,  and,  of  course,  there  is  no 
<lenying  the  existence  of  the  general  presumption  that  every 
one  knows  the  law.  We  therefore  feel  assured  that  subro- 
gation cannot  be  denied  to  a  purchaser  on  the  ground  of  his 
familiarity,  actual  or  presumed,  with  either  the  facts  or  the 
law,  unless  it  further  appears  that  his  action  has  been 
induced  by  fraud  or  an  apparent  intention  to  recklessly 
disregard  or  subvert  the  rights  of  others. 

§    .3").   Purchaser's  Right  to  the  Aid  of  Equity  in  Sup- 
plying Omissions  and  Mistakes. — In  every  case  where  a 
purchaser  has,  in   good  faith,  made  and  complied  with  his 
bid,  his   equities  are  of   a  very  persuasive  character,  and 
usually  appeal  to  our  sense  of  justice  more  strongly  than 
the  equities  of  him  who   seeks  to  avoid  the  sale  without 
l)lacing   the  purchaser  in  statu  quo.     In  many  cases  it  is 
apparent  that  the  vice  which  renders  the  sale  a  nullity  has 
not,  in  fact,  operated  to  the  detriment  of  him  whose  prop- 
erty was  sold.     All  the  parties  may  have  supposed  the  pro- 
ceedings to  be  regular:  the  bidding  may  have  been  spirited; 
the  price  realized  may  have  equalled,  or,  perhaps,  exceeded 
the  value  of  the  property;   the  proceeds  of  the  sale  nuiy 
have  all  been  applied  in  the  manner  directed  by  law,  and 
still  some  act  or  omission,  unnoticed  at  the  time,  may  render 
the  purchaser's  title  utterly  void  at  law.     In  such  a  case, 
our  sense  of  justice  revolts  at  the  thought  that  he  nuiy  be 
without  redress.     We  naturally  expect  that  e(|uity  will  in- 
terpose to  supply  the  omission,  or  that,  on   such  terms  as 
may  be  just,  it  will  enjoin  the  parties  in  interest  from  avail- 
ing themselves  of  an  error  which   clearly  has  not  iini)Mirc(l 
their  rights.  But,  on  seekingrelief ,  we  are  at  once  confronted 
witli  the  reminder  that,  "in  cases  of  defective  execution  of 
powers,   we   are  carefully  to    distinguish  between  powers 
which  are  created  by  private  parties  and  those  which   are 
specially  created  by  statute;    as,  for   instance,   powers    of 

(14)  209 


<j    :,5  VOID    JUDICIAL    8ALES. 

tenants  in  tail  to  make  leases.  The  latter  are  conslruecT 
with  more  strictness,  and,  whatever  formalities  are  required 
by  the  statute,  must  be  punctually  complied  with,  otherwise 
the  defect  cannot  be  helped,  or,  at  least,  may  not,  perhaps, 
be  helped  in  equity,  for  courts  of  equity  cannot  dispense 
with  the  regulations  prescribed  by  statute,  at  least  where 
they  constitute  the  apparent  policy  and  object  of  the  stat- 
ute."^ Perhaps  this  language,  owing  to  the  author's  timidity 
of  expression,  may  not  necessarily  dispose  of  the  purchaser's 
claim  for  relief.  The  other  authorities  are  more  decisive, 
especially  with  regard  to  execution,  judicial  and  probate 
sales.  Thus,  in  a  case  decided  by  Judge  Story,  it  appeared 
that  an  administrator's  sale  had  been  regularly  licensed,  and 
that  all  the  requirements  of  the  statute  had  been  respected, 
save  that  requiring  a  bond  to  be  given  and  approved  prior 
to  the  sale.  The  judge,  in  his  opinion,  said:  "Upon  this 
case  coming  out  on  the  trial  of  the  action  at  law,  (a  Avrit  of 
entry),  the  court  held  that  the  giving  of  the  bond  was  hy 
\avf  an  essential  prerequisite  to  the  sale ;  and,  it  not  having- 
been  complied  with,  the  sale  was  consequently  invalid,  and 
passed  no  title  to  the  purchaser.  It  is  now  argued  that 
however  correct  this  doctrine  may  be  at  law,  yet,  in  a  court 
of  equity,  the  omission  to  give  the  bond,  within  a  stipulated 
time,  ought  not  to  be  held  a  fatal  defect,  but  it  should  be 
treated  as  a  mistake,  or  inadvertence,  or  accident  properly 
remediable  in  a  court  of  equity.  We  do  not  think  so.  The 
mistake  was  a  voluntary  omission,  or  neglect  of  duty,  and 
in  no  just  sense  an  accident.  But,  if  it  were  otherwise,  it 
would  be  diificult,  in  the  present  case,  to  sustain  the  argu- 
ment. This  is  not  the  case  of  the  defective  execution  of  a 
power  created  by  the  testator  himself,  but  of  a  power- 
created  and  regulated  by  statutes.     Now,  it  is  a  well  settled 

1  Story's  Eq.  Jur.  sec.  96.  See  lb.  sec.  177;  1  Lead.  Cas.  in  Eq.  (4th 
Am.  Ed.)  379;  Freeman  on  Executions,  sec.  332;  Tiernan  v.  Beam,  "2' 
Ohio,  4G.5,  15  Am.  Dec.  oHl;  Ware  v.  Johnson,  55  Mo.  500;  Moreau  v.. 
Branham.  27  Mo.  351 :  McBryde  v.  Wilkinson,  29  Ala.  662. 

210 


VOID    JUDICIAL    SALES.  §    55 

doctrine  that,  although  courts  of  equity  may  relieve  against 
the  defective  execution  of  a  power  created  by  a  party,  yet 
they  cannot  relieve  against  the  defective  execution  of  a 
power  created  by  law,  or  dispense  Avith  any  of  the  formal- 
ities required  thereby  for  its  due  execution  ;  for,  otherwi.se, 
the  whole  policy  of  the  legislative  enactments  might  be 
overturned.  There  may,  perhaps,  be  exceptions  to  this 
rule,  but  if  there  be  the  present  case  does  not  present  any 
circumstances  which  ought  to  take  it  out  of  the  general  rule. 
Therefore,  it  seems  to  us  that  the  non-compliance  with  the 
statute  prerequisites,  in  the  present  case,  is  equally  fatal  in 
equity  as  it  is  in  law.^" 

In  Illinois,  certain  heirs  recovered  a  judgment  in  cjcc't- 
ment  for  lands  purchased  at  a  guardian's  sale.  The  defect 
in  the  purchaser's  title  was  the  omission  of  the  guardian  to 
report  the  proceedings  under  the  order  of  sale.  The  pur- 
chaser then  tiled  a  bill  to  enjoin  the  execution  of  the  judg- 
ment in  ejectment,  and  for  general  relief.  The  suj^reme 
court  decided  that  the  bill  must  be  dismissed.  Caton,  J.,, 
in  delivering  the  opinion  of  the  court,  considered  and 
approved  the  views  expressed  by  Judge  Story  in  his  Com- 
mentaries, and  also  in  Bright  v.  Boyd,  both  of  which  have 
been  quoted  in  this  section.  He  further  said  :  "If  chancery 
may  interfere  and  dispense  with  one  of  the  requirements  of 
the  statute  it  may  with  another,  and  thus  in  its  unlimited 
discretion  it  may  fritter  away  the  whole  statute.  It  is 
seriously  claimed  that,  because  the  purchaser  purchased  in 
good  faith,  and  paid  the  full  value  of  the  property  to  Ihc 
guardian  of  the  owners,  thereby  an  equity  is  raised  in  hi.- 
favor  and  against  them,  which  the  court  will  enforce. 
Equities  do  not  arise  upon  statutory  acts  without  the  voli- 
tion of  those  against  whom  the  equity  is  charged.  Sup))()>(' 
this  guardian,  seeing  that  a  caseiexisted  which  would  i<'(|uir(' 
the  circuit  court  to  order  a  sale  of  the  infant's  estate,  and. 

'  Bright  V.  Boyd,  1  Story,  C  C  4SG. 

211 


^'    5,")  VOID    JUDICIAL    SALES. 

ill  ioncranoo  of  the  law,  but  in  all  honestv,  liatl  sold  the 
estate  for  its  full  value,  and  without  an  order  of  court,  to  a 
purchaser  who,  in  good  faith,  supposed  he  was  gettiiig  a 
good  title,  in  that  case  the  purchaser's  equity  would  be  just 
ati  strong  as  is  the  equity  iu  this  case;  and,  should  we  now 
hold  that  the  purchaser  here  acquired  an  equitable  title, 
which  should  be  enforced  against  the  heir,  it  Avould  be 
c(|ually  our  duty,  when  the  supposed  case  arises,  to  compel 
a  convevance  to  the  purchaser,  and  then  the  entire  statute 
would  be  gone.  But  the  truth  is,  the  purchaser  at  these 
'jtatutory  sales  gets  no  imperfect  equital)le  title  which  may 
be  perfected  in  chancery;  he  gets  the  whole  title  which  the 
infant  had,  or  he  gets  no  title  whateyer."  ^ 

As  equity  will  not  supply  an  act  omitted  inadvertently 
or  otherwise,  so  it  will  not  correct  a  mere  mistake,  nor 
relieve  the  purchaser  from  the  consequences  of  a  mistake. 
Thus,  if  by  mistake  part  of  a  tract  intended  to  be  embraced 
in  an  order  of  sale  is  omitted  therefrom,  or  if  a  tract  alto- 
gether different  from  the  one  intended  is  inserted  therein, 
and  the  error  passes  unnoticed  until  after  the  sale,  equity 
cannot  relieve  the  purchaser,  nor  give  him  the  tract  which 
he  supposed  he  was  buying,  and  which  the  administrator  or 
other  officer  intended  to  sell.^  In  Iowa  this  rule  seems  to 
be  ignored.  A  judgment  was  entered  in  that  State  for  the 
sale  of  a  part  of  several  lots  of  land.  From  the  execution 
and  other  proceedings  subsequent  to  judgment,  one  of  these 
lots  was  omitted.  After  the  sale  and  delivery  of  the  deed, 
the  purchaser  discovered  the  omission.  By  a  proceeding  in 
equity  he  succeeded  in  setting  aside  the  sale  and  the  satis- 
faction of  the  judgment  thereby  produced,  and  obtained 
leave  to  issue  a  new  execution  in  conformity  with  his  judg- 
ment.-    This  case,  it  will  be  seen,  did  not  validate  a  void 

1  Young  V.  Dowling,  15  111.  481,  485. 

-  Dickey  v.  Beatty,  14  Ohio  St.  389;  Mahan  v.  Reeve,  G  Blackf.  21.5: 
Ward  V.  Brewer,  10  111.  291,  68  Am.  Dec.  596;  Rogers  v.  Abbott,  37  Ind. 
138:  Runnels  v.  Kaylor,  95  Ind.  503;  Keepfer  v.  Force,  86  Ind.  81. 

■'  Snyder  v.  Ives,  42  Iowa,  157. 

212 


VOID    JUDICIAL    SALES.  §     ')0 

sale.  It  did,  however,  «ive  relief,  which  ultimately  proved 
as  effectual ;  for  it  gave  the  right  to  make  a  sale  of  prop- 
erty which  had  not  been  sold  at  all.  The  reasons  given  for 
denying  relief  seem  to  be  technical  rather  than  equitable  in 
their  nature,  and  we  are  therefore  not  surprised  to  iind  a 
constantly  increasing  tendency  to  refuse  to  be  governed  l)y 
them.  When  a  sale  is  made  under  execution,  and  some  act 
is  omitted  on  account  of  which  the  sale  does  not  convoy  the 
legal  title,  it  must  be  admitted  that  equity  cannot  supi)ly 
the  omission,  and  yet  there  are  instances  in  which  the  courts 
have,  in  result,  supplied  it  by  compelling  the  defendant  in 
execution  not  to  avail  himself  of  it.  Thus,  though  there 
was  an  error  in  the  advertisement  of  sale  and  in  the  deed, 
yet,  because  the  judgment  debtor  was  present  at  the  sale, 
and  making  no  objection  thereto,  permitted  the  purchaser 
to  take  and  hold  })ossessi()n  for  several  years,  it  was  held 
that  equity  would  correct  the  mistake.^  On  the  other 
hand,  where  a  mistake  occurred  by  which  a  sheriff's  deed 
included  more  land  than  was  in  fact  sold,  such  error  was  in 
ecjuity  correctedjupon  parol  evidence.'^ 

Where  a  mistake,  made  in  describing  proi)erty  in  a  nuut- 
gage,  has  been  carried  into  the  proceedings  for  foi-eclosure, 
so  that  a  piece  of  land  has  been  thi-oughout  improperly 
designated,  the  mortgao^ee  is  not  without  redress.  He  mav, 
notwithstanding  the  judgment  aiid  sale,  at  least  where  he  is 
the  purchaser,  maintain  an  action  to  reform  the  mortgage, 
and  to  foreclose  it  as  reformed.  The  technical  objection 
to  this  proceeding  is,  that  the  mortgage  has  already  become 
merged  in  the  iudgment  of  foreclosure,  and  no  longer  exuts 
for  the  purpose  of  being  reformed.  To  this  objection  this 
reply  is  generally  made:  ''The  reformed  mortgage  is  not 
merged  in  any  decree,  for  there  is  no  decree  for  the  sale  of 
any  })remises  described   in  the  mortgage,  as  corrected  and 

'  Thomas  v.  Dockinn.  7')  (Ja.  347. 

^Miller  V.  Craij;,  83Ky.  Ii2:^,  4  Am.  St.  IJep.  17'.t:  Stiles  v.  Wifdiipr. 
3.5  Ohio  St.  .";.">.',. 

213 


^v    .... 


NOIl)    .JLUICIAL    SALES. 


icfonnod.  The  decree  may  be  satisfied  at  least  pro  fanfo 
to  the  aiiu.unt  of  the  sale;  but  the  decree  was  based  on  the 
iiii>t:daMi.  and  not  the  true,  mortgage;  the  sale  was  of  land 
iK.t  embraced  in  the  true  mortgage;  no  money  or  other  vai- 
iiabU'  thing  was  ever  received  by  plaintiff:  the  whole  pro- 
(Tcding  is  infected  by  the  original  mistake,  and  is,  therefore, 
l.asok'ss.  unsubstantial  and  nugatory."  ^  Eelief  will  be 
iiranted  against  all  persons  claiming  under  the  mortgagor, 
who  do  n(.t  stand  in  the  position  of  purchasers  or  incum- 
brancers in  good  faith,  for  value,  and  without  notice.'^ 
^\'hero  some  person  other  than  the  mortgagee  has  become 
the  purchaser  under  the  foreclosure,  we  presume  his  remedy 
must  be  by  a  suit  seeking  to  be  subrogated  to  the  mort- 
.g.'igee's  right  to  have  the  mortgage  reformed  and  foreclosed, 
according  to  the  description  intended  bj'  the  parties. 

The  case  of  the  actual  sale  of  one  parcel  of  property  when 
<in other  is  described  in  the  anterior  proceedings  presents  a 
(|uestion  of  great  difficulty.  Is  parol  evidence  admissible 
for  the  purpose  of  showing  what  was  actuall}'  sold  to  the 
<Mi(l  that  the  title  of  the  judgment  debtor  may  be  devested, 
<.r  he  enjoined  from  taking  advantage  of  it?  Where  the 
sale  i^  under  execution,  there  is  probably  more  difficulty  in 
sustaining  it  than  in  the  case  of  chancery  or  other  judicia 
sales.  Where  the  land  was  so  described  in  the  levy,  notice 
of  sale  and  sheriff's  deed  that  a  patent  ambiguity  existed, 
it  was  held  that  the  defect  could  not  be  cured  in  equity  by 
the  aid  of  extrinsic  evidence.-^  A  sale  may  have  been  made 
under  a  mortgage,  and  the  mistake  may  have  occurred  in 
that  instrument  and  have  been  carried  through  all  the  sub- 
sequent proceedings,  and  yet  all  the  parties  to  the  suit,  the 
officers  making  the  sale,  the  purchaser,  and  all  the  other 
bidders  may  have  had  in  mind  only  the  particular  parcel  of 

'  Davenport  v.  Sovil,  OOhio  St.  4G5;  Conyers  v.  Merlcles.  T'jlnd.  443; 
.St;ue  Bank  v.  Abbott.  20  Wis.  599;  Blodgett  v,  Hobart,  18  Vt.  414. 
-  Strang  v.  Beach,  11  Ohio  St.  283,  78  Am.  Dec.  308. 
'  Tatum  V.  Groom,  60  Ark.  487. 

214 


VOID    JUDICIAL    SALES.  <[    Di) 

property  intended  to  be  included  in  the  mortgage.       There 
is  little  or  uo  doubt  in  such  a  case  that  a  second  suit  may 
be  maintained  to  reform   and  foreclose    the  mortgage,  but 
this  would  necessarily  vacate  the  first  sale  and  be  of  no  aid 
to  the  purchaser,  except  in  so  far  as  he  might  be  subrogated 
to  the  rights  of  the  original  mortgagee.     May  the  purchaser 
Inasuitin   equity   obtain    the  i)roperty  which  he  supposed 
himself  to  be  purchasing':'     While  he  has  equities  of  a  very 
high  cliaracter,  they  probably  do  not  entitle  him  to  treat 
his  purchase  as  a  complete  and  binding  acquisition  of  lands 
which  have  never  been  ordered  sold,  which  no  officer  had 
-any  authority  to  sell,   and  which,   therefore,  could  never 
have   induced  that    competition    among  intending  bidders 
which  would  have  attended  a  sale  by  a  proper  description 
iind     based    on   unquestionable   authority.^     In    California 
the  rule  is  otherwise.     In  that  State  a  mistake  was  made  in 
<lescribinfr  the  number  of  the  block  in  which  the  lot  intended 
to  be  mortgaged  was  situate.     This  mistake  was  repeated 
in  the  decree,  order  of  sale  and  deed  ;  but  the  sheriff  pointed 
out  to  the  bidders  [the  lot  intended  to  be  mortgaged,   and 
sold  it  to  one  of  them,  Avho  was  the  mortgagee.     Under  the 
sale  he  took  possession,  and,  while  continuing  in  possession, 
sold  the  lot  and  conveyed  it  l)v  a  correct  description.     The 
vendee,  several    years    afterwards,     intervened    in  a    suit 
brought  against  his  tenant  to  recover  possession  of  the  lot, 
.and  disclosed  his  equities  to  the  court  by  appropriate  plead- 
ings.    The  court  was  of  opinion  that  the  mortgage,  decree, 
and  sheriff's  deed  might  all  be  reformed  in  this  proceeding, 
-saying,  in  support  of  its  judgment:      "But  it  is    said  the 
inortffaore  cannot  now   be  reformed,  because  it  has  become 
merged  in  the  judgment  of  foreclosure,  and  that  it  is  not 
■competent  for  a  court  of  eciuity  to  reform  the  judgment 
and  the  sheriff's  deed.     We  have  been  referred  to  no  au- 
thorities in  support  of  this  proposition,  and.  on  principle 

'  Miller  V.  Kolb,  47  Ind.  220;  Lewis   v.  Owen,   tU    Iml.   -nn:    Angle  v. 
tSpeir.  •;:;  Ind.  48s ;  Armstrong  v.  Short,  Or>  Ind   ii2r>. 

215 


§  ^5 


\()11)    -lUDU'lAL    SALES. 


of  reason  aiul  justice,  we  do   not  perceive  why  a  court  of 
equity  may  not  reform  mistakes  in  judgments  or  decrees, 
in  like  manner  as  in  written  instruments.     But  it  is   said 
there  was  no  mistake,  either  in  the  decree  or  sheriff's  deed, 
which  foUowed  the  description  in  the  mortgage,  and  could 
not    have    done  otherwise;    and,  consequently,  there  is  no 
mistake  to  reform  in  either  of  them.     As  well  might  it  be 
claimed  that  if  there  be  a  mistake  in  the  first  of  a  series  of 
conveyances,  which  was  carried  out  through  all  the  subse- 
<|ueut  conveyances,  that  the  court  could  only  correct   the 
mistake  in  the  first  deed;    and  that,  in  fact,  there  was   no 
mistake   in  the    subsequent    deeds,   which   were   correctly 
copied  from  the  tirst,  as  they  were  intended  to  be.     But  a 
court  of  equity  does  not  administer  justice  on  these  narrow 
principles.     It  will  not  only  go  back  to  the  original  error 
and  reform  it,  but  will  administer  complete  justice,  by  cor- 
recting all  subsequent  mistakes  which  grew  out  of  and  were 
superinduced  by  the  tirst.    It  would  be  a  rare  thing  to  reform 
the  first,  and  perpetuate  the  last,  by  refusing  to  disturb  it. 
The  rule  in  equity  is  to  do  nothing  by  halves,  but,  in  proper 
cases,  to  administer  a  full  measure  of  relief,  so  as  to  avoid 
circuity  of  action  and  promote  the  ends  of  justice."  ^     The 
decisions  in  Florida  and  Ncav  Jersey  are  in  harmony  on  this 
subject  with  that  of  California."^ 

If  there  is  no  mistake  in  the  decree  ordering  a  sale,  or  if 
the  sale  is  made  under  an  ordinary  money  judgment,  and  a 
mistake  is  nuide  in  the  advertisement  of  sale,  levy  or  deed, 
or  in  all  of  them,  and  it  clearly  appears  that  such  mistake  es- 
daped  attention,  and  that  the  officer  sold,  and  the  purchaser 
in  good  faith  bought,  certain  lands  which  were  in  fact  those 
intended  to  be  levied  upon,  sold,  and  conveyed,  there  is  a 
growing  inclination  on  the  part  of  courts  of  equity  to  relieve 
the  purchaser,  where  so  to  do  would  be  just,  by  reforming 

'  Quivey  V.  Baker,  37  Cal.  471. 

2  Greeley  v.  De  Cottes,  24  Fla.  475;  Waldron  v.  Letson,  15  X.  J.   Eq^ 
126. 

216 


VOID     lUDlCIAI.    SALE8.  §    .35 

the  slieriff's  deed,  and,  if  necessary,  the  lew,  and  thereliy 
vesting  the  purchaser  with  the  title  to  that  which  was  in 
fact  intended  to  be  sold  and  conveyed.^ 

In  those  States  wherein  equity  does  not  usually  aid  the 
defective  execution  of  a  statutory  power,  we  judge  that  this 
rule  cannot  prevail  where  all  the  prerequisites  prescribed  by 
law  have  been  observed,  but  the  purchaser  has  either  re- 
ceived no  conveyance  or  one  which  is  not  such  as  he  is 
entitled  to  receive.  In  this  case,  the  parties  whose  propert}'^ 
was  sold  will  be  enjoined  from  availing  themselves  of  the 
omission,^  or  the  officer  will  be  compelled  to  perform  his 
duty  by  executing  a  convevauce  in  proper  form.'^  Where 
everything  has  been  done  necessary  to  entitle  the  purchaser 
to  a  conveyance,  little  difficulty  need  be  experienced  l)v  him 
in  asserting  his  rights,  whether  a  conveyance  to  him  has 
been  attempted  or  not.  If  the  sale  has  been  made  by  an 
executor,  administrator,  or  guardian,  and  approved  by  the 
court,  and  payment  of  the  purchase  price  has  been  nuide. 
the  equitalde  title  of  the  purchaser  is  complete,  and  the 
heirs  will  not  bo  permitted  to  recover  the  property  from 
him,*  though  he  may,  on  the  other  hand,  maintain  a  suit 
against  them  to  have  vested  in  him  the  lei>al  title,"'  or  to 
compel  a  conveyance  thereof  cither  by  the  original  executor 
or  administrator,  or  in  the  event  of  his  decease  or  other 
inabilitv  to  act,  then  by  some  person  appointed  by  the  court 


1  Bartlett  v.  .Tudd,  21  N.  Y.  200,  78  Am.  Dec.  131 ;  <  olie  v.  .laiiu'son. 
la  Nat.  Bank,Rfg.  4;  Stewart  v.  ]*ettigrew,  28  Ark.  872;  .Tobiis  v. 
Home,  .")  IJlackf.  421  ;  Zingsem  v.  Kidd,  29  X.  .1.  Eq.  r>l(i;  Qnivey  v. 
Baker,  ;J7  Cal.471. 

-  Wortman  V.  Skinner.  1  Beas.  3.')8:  DeRienier  v.  De  Cantillon.  4 
.Johns.  Cb.  8.'». 

3  Jelks  V.  Barrett,  .")2  Miss.  31."j;  Stewart  v.  Stokes,  :}:5  Ala.  4'M:  Fiee- 
nian  on  Executions,  sec.  382.  Deeds  of  coiuniissioners  and  administra- 
tors may,  in  certain  cases,  be  reformed  by  equitable  action  in  Missouri. 
Jloux  V.  County  of  Bates.  <11  Mo.  391 ;  (irayson  v.  Weddle,  <i3  Mo.  ."28. 

*  Henry  v.  McKerlie,  7S  .Mo.  41(5. 

•'  Sherwood  v.  Baker,  10.'>  Mo.  472. 

217 


^     .-,;,  VOID    JUDICIAL    SALES. 

t\)V  that  purpose. 1  When  u  sale  has  been  iiuide  under  ex- 
ecution, and  no  proper  deed  has  been  executed  thereunder, 
there  is  no  doubt,  though  a  former  conveyance  has  been 
made,  yet  if  it  is  incorrect  or  unavailing,  a  remedy  exists 
bv  compelling  the  execution  of  another  deed,^  and  this  may, 
in  most  of  the  States,  be  either  by  motion  in  the  original 
ca.se  to  obtain  a  rule  commanding  the  sheriff  to  execute  the 
deed,  or  by  a  proceeding  in  equity  to  compel  the  sheriff  to 
comply  with  the  terms  of  the  certificate  of  purchase,  and 
in  some  States  a  remedy  exists  by  proceedings  by  mcni- 
thnnus:-^  In  North  Carolina  a  sheriff's  deed  does  not  pass 
the  title  until  recorded.  If  it  is  lost  before  registration,  an 
action  maybe  brought  against  the  sheriff  and  the  judgment 
debtor  in  which  the  purchaser  may  recover  judgment  that 
the  officer  execute  a  deed  in  lieu  of  the  one  lost,  and  also 
for  the  possession  of  the  land.* 

The  time  within  which  a  sheriff's  deed  may  be  reformed 
or  perfected  has  been  but  little  considered.  Ordinarily, 
one  in  possession  of  property  may  maintain  a  suit,  irrespect- 
ive of  the  lapse  of  time,  to  remove  a  cloud  from,  or  to  quiet 
his  title,  or  to  obtain  written  evidence  of  title,  or  to  reform 
the  conveyance  under  which  he  claims.  While  he  is  in 
possession,  and  until  a  prescriptive  right  to  the  possession 
has  been  created  against  him  by  a  holding  adverse  to  him, 
he  retains  the  right  to  maintain  any  appropriate  suit  for  the 
purpose  hereinbefore  stated.'^  We  know  of  no  reason  Avhy 
the  same  rule  should  not  be  applied  to  sheriff's  deeds.  A 
purchaser,  after  the  expiration  of  the  time  for  redemption, 
has  a  complete  equity  and  an  absolute  right  to  be  invested 
with  the  legal  title  by  the  execution  of  the  appropriate  con- 

1  Dean  v.  Lanford,  0  Rich.  Eq.  423. 

2  Moody  V.  Hamilton,  22  Fla.  98;  Krusev.  Wilson,  79  111.   233;  Ware 
V.  Johnson,  55  Mo.  500;  Hall  v.  Klezpig,  99  Mo.  83. 

2  Freeman  on  Executions,  sec.  326. 
*  McMillan  v.  Edwards,  75  N.  C  81. 

'Tatev.PensacolaG.,  etc.,  Co.,  37  Fla.  439,53  Am.  St.  Rep.  251 ;  Bar- 
bour Y.  Whitlock.  5  Mod.  ISO;  Pomeroy  on  Contracts,  sec.  404. 

218 


VOID    JL'DICIAI.    SAI.KS.  §     ')') 

veAance.  Ifhe  takes  and  holds  possession  of  the  property, 
his  right  to  a  eonveyanee  is  a  continuing  right,  and  may  be 
enforced  at  any  time.  In  Illinois,  the  time  within  which  a 
sheriff's  deed  may  issue  has  been  limited  by  statute,  and  it 
has  hence  been  held  that  an  officer  has  no  power  to  execute 
a  second  and  correctory  conveyance  after  the  expiration  of 
the  time  within  which  the  original  might  lawfully  have  been 
executed.^ 

I  Rvhiaer  v.  Frank.  lOr.  111.  SiC:  Parker  v.  Shannon.  137  111.  876. 


21I» 


S    5(3  VOID    .JUDICIAL    SALES. 


CHAPTER  VI. 


I 


THE   CONSTrrrXIONALlTY    OF   CURATIVE   STATUTES. 
SECTION. 

5G.    Curative  Statutes  Upheld  by  Supreme  Court  of  United  States. 

57.  Curative  Statutes  Confirming  Irregular  .Judicial  Proceedings. 

58.  Curative  Statutes  Confirming  Void  .Judicial  I'loceedings. 
58a.  Special  Statutes  of  Ivimitations  in  Favor  of  Purchasers. 

59.  Defects,  other  than  Jurisdictional,  which  are  Pronounced  In- 

curable. 
(iO.    Informalities  which  may  be  Waived  by  Subsequent  Statutes. 
CI.    Limitation  on  Effect  of  Curative  Statutes. 
(52.    General  Reflection  Concerning  Curative  Statutes. 

§  56.  Curative  Statutes  Upheld  by  Supreme  Court  of 
Uuited  States. — Numerous  statutes  have  been  enacted, 
professing  to  validate  judicial  sales  and  proceedings,  which, 
without  the  aid  of  such  statutes,  were  unquestionably  inop- 
erative, both  at  law  and  in  equity.  Such  statutes  are  clearly- 
retrospective.  They  also  take  at  least  the  legal  title  away 
from  its  owner,  and  vest  it  in  another  person  without  due 
process  of  law.  They  usually,  if  not  universally,  do  even 
more  than  this,  for  they  give  force  to  titles  which  are  not 
less  void  in  equity  than  at  law.  They  have,  therefore,  been 
(juestioned  as  conflicting  with  express  constitutional  provis- 
ions, and]  also  as  violating  some  principles  which,  even 
without  any  direct  constitutional  expressions,  must  be  ad- 
mitted to  prevail  under  ever}'  civilized  form  of  government.^ 

1  For  an  annunciation  of  the  rule  that  there  must  necessarily  be  some 
restraints  upon  legislative  authority  in  every  free  and  civilized  country 
independent  of  direct  constitutional  prohibitions  and  assui-ances,  see 
Calder  v.  Bull,  3  Dall.  386;  Wilkinson  v.  Leland,  2  Pet.  55G;  Loan  Asso- 
ciation V.  Topeka,  20  Wall.  603;  Story  on  the  Const.,  sec.  1399. 

220 


VOID    JUDICIAL    SALES.  §    5() 

We  shall  fir.st  call  attention  to  a  case  which,  as  it  arose 
in  a  State  then  having  no  constitution,  may,  perhaps,  be 
accepted  as  an  authoritative  determination  of  this  question, 
where  it  is  to  be  answered  solely  from  the  constitution  of 
the  United  States,  as  that  instrument  stood  before  the 
adoption  of  the  fourteenth  amendment.  Jonathan  Jenckes 
died  in  New  Hampshire,  leaving  a  will  which  was  there  ad- 
mitted to  probate.  The  executrix  obtained  a  license  of  the 
judo-e  of  probate  in  New  Hampshire,  purporting  to  authorize 
her  to  sell  lands  in  Rhode  Island.  Under  this  license  she 
sold  and  conveyed  lands  in  the  last  named  State.  The  sale 
was  confessedly  void,  because  the  courts  of  New  Hampshire 
had  no  jurisdiction  over  lands  situate  in  another  State,  She 
made  an  application  to  the  legislature  of  Rhode  Island, 
stating  the  facts  in  her  petition,  and  thereupon  an  act  was 
passed  at  the  June  session  of  17D2,  ratifying  and  confirm- 
ins  the  title  based  on  her  sales  and  convej'ances. 

In  determining  the  constitutionality  of  this  act  Mr.  Jus- 
tice Storv,  delivering  the  opinion  of  the  supreme  court  of 
the  United  States,  said:  "Rhode  Island  is  the  only  State 
in  the  Union  which  has  not  a  written  constitution  of  gov- 
ernment, containing  its  fundamental  laws  and  institutions. 
Until  the  Revolution  of  1776  it  was  governed  by  the  charter 
granted  by  Charles  II.,  in  the  fifteenth  year  of  his  reign. 
That  charter  has  ever  since  continued  in  its  general  provis- 
ions to  regulate  the  exercise  and  distribution  of  the  powers 
of  government.  It  has  never  been  fornudly  abrogated  by 
the  people,  and,  except  so  far  as  it  has  been  modified  to 
meet  the  exigencies  of  the  revolution,  may  be  considered 
MS  now  a  fundamental  law.  By  this  charter  the  power  to 
make  laws  is  granted  to  the  general  assembly  in  the  most 
complete  manner,  'so  as  such  laws,  etc.,  be  not  contrary 
and  repugnant  unto,  but  as  near  as  may  be  agreeable  to  the 
laws,  etc.,  of  England,  considering  the  nature  and  constilu- 
tion  of  the  place  and  people  there.'  What  is  the  true  extent 
of  the  power  thus  granted  must  be  open  to  explanation,  as 

221 


^    ,",0  \OIl)    .irniClAL    SALKS. 

woll  l)v  iisao'c  jis  by  construction  of  the  terms  in  which  it  is 
uiviMi,  In  :i  oovcrnnient  professing  to  regard  the  great 
riuhts  of  personal  liberty  and  of  property,  and  which  is 
required  to  legislate  in  subordination  to  the  general  laws  of 
Knoland,  it  would  not  lightly  be  presumed  that  the  great 
principles  of  ^lagna  Charta  were  to  be  disregarded,  or  that 
the  estates  of  its  subjects  were  liable  to  be  taken  away  with- 
out trial,  without  notice  and  without  offense.  P>en  if  such 
authority  could  l)e  deemed  to  have  been  confided  by  the 
charter  to  the  general  assembly  of  Rhode  Island  as  an  ex- 
ercise of  transcendental  sovereignty,  before  the  revolution, 
it  can  scarcely  be  imagined  that  that  great  event  could  have 
left  the  i)co})le  of  that  State  subjected  to  its  unconditioned 
and  arbitrary  exercise.  The  government  can  scarcely  be 
deemed  to  be  free,  where  the  rights  of  property  are  left 
solely  dependent  upon  the  will  of  a  legislative  body,  without 
any  restraint.  The  fundamental  maxims  of  a  free  govern- 
ment seem  to  require  that  the  rights  of  personal  liberty  and 
private  property  should  be  held  sacred.  At  least  no  court 
of  justice  in  this  country  would  be  warranted  in  assuming 
that  the  power  to  violate  and  disregard  them — a  power  so 
repugnant  to  the  common  principles  of  justice  and  civil 
liberty — lurked  under  any  general  grant  of  legislative  au- 
thority, or  ought  to  be  implied  from  any  general  expressions 
of  the  will  of  the  people.  The  people  ought  not  to  be  pre- 
sumed to  part  with  rights  so  vital  to  their  security  and 
well-being  without  very  strong  and  direct  expressions  of 
such  intention. 

•'In  Terret  v,  Taylor,^  it  Avas  held  by  this  court,  that  a 
grant  or  title  to  lands  once  made  by  the  legislature,  to  an}^ 
person  or  corporation,  is  irrevocable,  and  cannot  be  reas- 
sumed  by  any  subsequent  legislative  act,  and  that  a  different 
doctrine  is  utterly  inconsistent  Avith  the  great  and  funda- 
mental principle  of  a  republican  government,  and  Avith  the 
rights  of  the  citizens  to  the  free  enjoyment  of  their  property 

lOCrauch,  43. 

222 


VOID    JUDICIAL    SALES.  §    5(> 

lawfully  ac(]uired.  We  know  of  no  case  in  wliitli  a  leois- 
lative  act  to  transfer  the  propert}-  of  A  to  B.  without  his 
eoDsent,  has  ever  been  held  a  constitutional  exercise  of 
legislative  power  in  any  State  in  the  Union.  On  the  con 
trary,  it  has  been  constantly  resisted,  as  inconsistent  with 
just  principles,  by  every  judicial  tribunal  in  which  it  has 
been  attempted  to  be  enforced.  We  are  not  prepared, 
therefore,  to  admit  that  the  people  of  Rhode  Island  had 
ever  delegated  to  their  legislature  the  power  to  devest  the 
vested  rights  of  property,  and  transfer  them  without  the 
assent  of  the  parties.  The  counsel  for  the  plaintiffs  have 
themselves  admitted  that  they  cannot  contend  for  anv  such 
doctrine. 

"The  question  then  arises,  whether  the  act  of  17112  in 
volves  any  such  exercise  of  power.  It  is  admitted  that  the 
title  of  an  heir  by  descent,  in  the  real  estate  of  his  ancestor 
and  of  a  devisee  in  an  estate  unconditionally  devised  to  him, 
is,  upon  the  death  of  the  party  under  whom  he  claimed, 
immediately  devolved  upon  him,  and  he  ac(|uires  a  vested 
estate.  But  this,  though  true  in  a  general  sense,  still  leaves 
his  title  incumbered  with  all  the  liens  which  have  been  cre- 
a'.ed  by  the  party  in  his  lifetime,  or  by  the  law  at  his  decease. 
It  is  not  an  unqualitied,  though  it  be  a  vested  interest,  and 
it  confers  no  title,  except  to  what  remains  after  every  such 
lien  is  discharged.  In  the  present  case,  the  devisee,  under 
the  will  of  Jonathan  Jenckes,  without  doubt,  took  a  vested 
estate  in  fee  in  the  lands  in  Rhode  Island.  But  it  was  an 
estate  subject  to  all  the  qualifications  and  liens  which  the 
laws  of  that  State  annexed  to  those  lands.  It  is  not  sutH- 
cient,  to  entitle  the  heirs  of  the  devisee  now  to  recover,  to 
establish  the  fact  that  the  estate  so  vested  had  been  devested, 
but  that  it  had  been  devested  in  a  luanncr  inconsistent  with 
the  principles  of  law. 

"By  the  laAvs  o*f  Rhode  Island,  as  indeed  by  the  laws  of 
the  other  New  England  States  (for  the  same  general  system 
pervades  them  on  this  subject),  the  real  estate  of  testators 


^    ;)(3  VOID    JUDICIAL    SALES. 

aiul  intestates  stands  chargeable  with  the  payment  of  their 
(lol)(s.  upon  a  (leticiency  of  assets  of  personal  estate.  The 
(U'tioiencj  being  once  ascertained  in  the  probate  court,  a 
license  is  granted  by  the  proper  judicial  tribunal,  upon  the 
petition  of  the  executor  or  administrator,  to  sell  so  much 
of  the  real  estate  as  may  be  necessary  to  pay  the  debts  and 
incidental  charges.  The  manner  in  which  the  sale  is  made 
is  prescribed  by  the  general  laws.  In  Massachusetts  and 
Khode  Island,  the  license  to  sell  is  granted,  as  a  matter  of 
course,  without  notice  to  the  heirs  or  devisees,  upon  the 
mere  production  of  proof  from  the  probate  court,  of  the 
deficiency  of  personal  assets.  And  the  purchaser  at  the 
sale,  upon  receiving  a  deed  from  the  executor  or  adminis- 
trator, has  a  complete  title,  and  is  in  immediately  under  the 
deceased,  and  may  enter  and  recover  possession  of  the 
estate,  notwithstanding  any  intermediate  descents,  sales, 
disseizins,  or  other  transfers  of  title  or  seisin.  If,  there- 
fore, the  whole  real  estate  be  necessary  for  the  payment  of 
debts,  and  the  whole  is  sold,  the  title  of  the  heirs  or  devisees 
is,  by  the  general  operation  of  law,  devested  and  super- 
seded ;  and  so,  pro  lanto,  in  case  of  a  partial  sale. 

"From  this  summary  statement  of  the  laws  of  Rhode 
Island,  it  is  apparent  that  the  devisee,  under  whom  the 
present  plaintiffs  claim,  took  the  land  in  controversy,  sub- 
ject to  the  lien  for  the  debts  of  the  testator.  Her  estate 
was  a  defeasable  estate,  liable  to  be  devested  upon  a  sale  by 
the  executrix,  in  the  ordinary  course  of  law,  for  the  paj- 
inent  of  such  debts,  and  all  that  she  could  rightfully  claim 
would  be  the  residue  of  the  real  estate  after  such  debts  were 
fully  satisfied.  In  point  of  fact,  as  it  appears  from  the 
evidence  in  the  case,  more  debts  were  due  in  Rhode  Island 
than  the  whole  value  for  which  all  the  estate  there  Avas 
sold;  und  there  is  nothing  to  impeach  the  fairness  of  the 
sale.  The  probate  proceedings  further  show,  that  the 
estate  was  represented  to  be  insolvent;  and,  in  fact,  it  ap- 
proached very  near  to  an  actual  insolvenc}'.     So,  that  upop 

224 


VOID    JUDICIAL    SALES.  §    .30 

this  posture  of  the  case,  if  the  executrix  had  proceeded  to 
obtain  a  license  to  sell,  and  hatl  sold  the  estate  according  to 
the  general  laws  of  Rhode  Island,  the  devisee  and  her  heirs 
would  have  been  devested  of  their  whole  interest  in  the 
estate,  in  a  manner  entirely  complete  aud  unexcciHionable. 
They  have  been  devested  of  their  formal  title  in  another 
niauner,  in  favor  \)f  creditors  entitled  to  the  estate;  or, 
rather,  their  formal  title  has  been  made  subservient  to  the 
paramount  title  of  the  creditors. 

"Some  suggestions  have  been  thrown  out  at  the  bar, 
intimating  a  doubt  whether  the  statutes  of  Rhode  Island, 
giving  to  its  courts  authority  to  sell  lands  for  payment  of 
debts,  extended  to  cases  where  the  deceased  was  not,  at  the 
time  of  his  death,  an  inhabitant  of  the  State.  It  is  believed 
that  the  practical  construction  of  these  statutes  has  been 
otherwise,  l^ut  it  is  unnecessary  to  consider  whether  that 
practical  construction  be  correct  or  not,  inasmuch  as  the 
laws  of  Rhode  Island,  in  all  cases,  make  the  real  estate  of 
persons  deceased  chargeable  with  their  debts,  whether 
inhabitants  or  not.  If  the  authority  to  enforce  such  a 
charge  by  a  sale  be  not  confided  to  any  subordinate  court, 
it  must,  if  at  all,  be  exercised  by  the  legislature  itself.  If 
it  be  so  confided,  it  still  renuiins  to  be  shown  that  the 
legislative  is  precluded  from  a  concurrent  exercise  of  i)ower. 

"What,  then,  are  the  objections  to  the  act  of  17'J2? 
First,  it  is  said  that  it  devests  vested  rights  of  property. 
But  it  has  been  already  shown  that  it  devests  no  such  rights, 
except  in  favor  of  existing  liens,  of  paramount  obligation, 
and  that  the  estate  was  vested  in  the  devisee,  expressly  sub- 
ject to  such  rights.  Then,  again,  it  is  said  to  be  an  act  of 
judicial  authority,  which  the  legislature  was  not  competent 
to  exercise  at  all;  or,  if  it  could  exercise  it,  it  couUl  be  only 
after  due  notice  to  all  the  parties  in  interest,  and  a  licaiing 
and  decree.  AVe  do  not  think  that  the  act  is  to  be  con- 
sidered as  a  judicial  act,  but  as  an  exercise  of  legislation. 
It  purports  to  be  a  legislative  resolution,  and  not  a  decree. 
(IT))  225 


^    f)(;  VOID    JUDICIAL    SALES. 

As  t(i  notice,  if  it  were  nccossai-y  (and  it  certainly  would 
bo  wise  and  convenient  to  give  notice,  where  extraordinary 
efforts  of  legislation  are  resorted  to,  which  touch  private 
rights),  it  might  well  be  presumed,  after  the  lapse  of  more 
than  thirty  years,  and  the  acquiescence  of  the  parties  for  the 
same  period,  that  such  notice  was  actually  given.  But  by 
the  general  hnvs  of  Khode  Island  upon  this  subject,  no 
notice  is  required  to  be,  or  is,  in  practice,  given  to  heirs  or 
devisees,  in  cases  of  sales  of  this  nature ;  and  it  would  l)e 
strange  if  the  legislature  might  not  do,  without  notice,  the 
same  act  which  it  would  delegate  authority  to  another  to  do 
without  notice.  If  the  legislature  had  authorized  a  future 
sale  bv  the  executrix  for  the  payment  of  debts,  it  is  not 
easy  to  perceive  any  sound  objection  to  it.  There  is  nothing 
in  the  nature  of  the  act  which  requires  that  it  should  be  per- 
formed by  a  judicial  tribunal  or  that  it  should  be  performed 
by  a  delegate,  instead  of  the  legislature  itself.  It  is  reme- 
dial in  its  nature,  to  give  effect  to  existing  rights. 

"But  it  is  said  that  this  is  a  retrospective  act,  which  gives 
validity  to  a  void  transaction.  Admitting  that  it  does  so, 
still  it  does  not  follow  that  it  may  not  be  within  the  scope 
of  the  legislative  authority,  in  a  government  like  that  of 
Rhode  Island,  if  it  does  not  devest  the  settled  rights  of 
property.  A  sale  had  already  been  made  by  the  executrix 
under  a  void  authority,  but  in  entire  good  faith  (for  it  is 
not  attempted  to  be  impeached  for  fraud),  and  the  proceeds, 
constituting  a  fund  for  the  payment  of  creditors,  were 
ready  to  be  distributed  as  soon  as  the  sale  was  made  effect- 
ual to  pass  the  title.  It  is  but  common  justice  to  presume 
that  the  legislature  was  satisfied  that  the  sale  was  bona  fde, 
and  for  the  full  value  of  the  estate.  No  creditors  have  ever 
attempted  to  disturb  it.  The  sale,  then,  was  ratified  by  the 
legislature,  not  to  destroy  existing  rights,  but  to  effectuate 
them,  and  in  a  manner  beneficial  to  the  parties.  We  cannot 
say  that  this  is  an  excess  of  legislative  power,  unless  we  are 
prepared  to  say  that,  in  a  State  not  having  a  written  consti- 

226 


VOID    JUDICIAL    SALES.  §    57 

tution,  acts  of  legislation  having  a  retrospective  operation, 
are  void  as  to  all  persons  not  assenting  thereto,  even  though 
they  may  be  for  beneficial  purposes,  and  to  enforce  cxist- 
inor  riohts.  "We  think  that  this  cannot  be  assumed,  as  a 
general  principle,  hy  courts  of  justice.  The  present  case  is 
not  so  strong  in  its  circumstances  as  that  of  Calder  v.  Bull,^ 
or  Rice  v.  Parkman,^  in  both  of  which  the  resolves  of  the 
leffishiture  were  held  to  be  constitutional.' '•^ 

§   57.      Confiriiiinn   Irrrj»ular    Judicial    Proceedings. — 

The  decision  just  (juoted  is  extreme  in  its  character,  in  this, 
that  it  affirms  the  constitutionality  of  a  statute  which  con- 
firmed proceedings  that  had,  of  themselves,  not  even  the 
shadow  of  validity.  The  defect  in  the  title,  made  good  by 
this  statute,  did  not  arise  from  any  irreguhir  exercise  of 
existing  authority,  ])ut  fi-om  the  palpable  absence  of  all 
authority  wdiatsoever.  The  court,  under  which  the  execu- 
trix had  acted,  was  notoriously  without  jurisdiction  in  the 
matter.  In  so  far  as  this  decision  maintains  that  proceed- 
ings, prosecuted  without  jurisdiction  over  the  person  or  sub- 
ject-matter, may  be  subsequently  validated  by  legisjati\-e 
action,  we  think  it  is  squarely  in  conflict  with  the  opinions 
of  the  jurists  of  the  present  age.  But  mere  irregularities 
of  proceeding,  though  of  so  grave  a  character  as  to  render 
a  judicial  or  execution  sale  inoperative,  may  be  deprived  of 
their  evil  consequences  by  subsequent  legislation.  In  Penn- 
sylvania, a  judgment  prematurely  entered  was  confirmed  by 
an  act  of  the  legislature,  after  a  sale  of  the  defendants' 
property  had  been  made  under  it.  "The  error  in  entering 
the  judgment,"  said  the  court,  "is  cured  by  the  confirming 
act;  the  constitutionality  of  this  no  man  can  doubt.  It 
impaired  no  contract,  disturbed  no  vested  right,  and  if  ever 
there  was  a  case  in  which  the  legislature  ought  to    stretch 

'  3  Dall.  Kep.  :iSr,. 

2  16  Mass.  Rep.  32(5. 

3  Wilkinson  v.  Leland,  2  I'et.  (>r,(\. 

2-n 


^     -)7  AOID    JUDICIAL     SALKS. 

forth  its  stronii:  arm  to  i)votect  a  whole  community  from  an 
impoiulinji-  evil,  caused  by  mere  slips,  this  was  the  occasion. 
Contirmini^  acts  are  not  uncommon — are  very  useful;  deeds 
acknowledo-ed  defectively  by  feme  coverts  have  been  con- 
lirmed,  and  i)roceedings  and  judgments  of  commissioned 
justices  of  the  peace,  who  were  not  commissioned  agreeably 
to  the  constitution,  or  where  their  power  ceased  on  the 
division  of  the  counties,  until  a  new  appointment.  This 
law  is  free  from  all  the  odium  to  which  retrospective  laws 
are  o-enerally  exposed.  Where  a  law  is  in  its  nature  a  con- 
tract, where  absolute  rights  are  vested  under  it,  a  law 
retrospecting,  even  if  constitutional,  would  not  be  extended 
by  any  liberal  construction,  nor  would  it  be  construed  by 
any  general  words,  to  embrace  cases  where  actions  are 
brought.  Retrospective  laws,  which  only  vary  the  remedies, 
devest  no  right,  but  merely  cure  a  defect  in  a  proceeding 
otherwise  fair — the  omission  of  formalities  which  do  not 
diminish  existing  obligations,  contrary  to  their  situation 
when  entered  into  and  when  prosecuted;  for  one  is  consist- 
ent with  every  principle  of  natural  justice,  while  the  other 
is  repugnant.  The  plaintiff  in  error  could  not  be  injured, 
whether  the  judgment  Avas  entered  on  the  Monday  or 
Wednesday  of  the  week.  It  did  not  deprive  him  of  any 
opportunity  of  defense.  If  he  filed  a  counter  statement  or 
plea,  appeared  and  took  defense  any  time  in  the  week,  the 
court  would  have  received  it."  ^  But,  as  a  general  rule,  the 
court  will  not  uphold  statutes  which  interfere  w^ith  the  effect 
of  their  pre-existing  judgments. ^  In  Indiana,  however,  a 
curative  act  was  held  valid,  which  made  valid  the  proceed- 


1  Underwood  v.  Lilly,  10  S.  &  R.  97. 

-  Hence,  the  legislature  cannot  authorize  a  court  to  reopen  its  judg- 
ments after  the  time  for  appeal  has  expired.  De  Chastellux  v.  Fair- 
child.  15  Pa.  St.  18,  53  Am.  Dec.  570;  Hill  v.  Town  of  Sunderland,  3  Vt. 
.507;  Davis  v.  Menasha,  21  Wis.  491;  Taylor  v.  Place,  4  K.  I.  324;  Lewis 
v.  Webb,  3  (iieenl.  32G;  Denny  V.  Mattoon,  2  Allen,  379,  79  Am.  Dec. 
784,  ovdrrulingBraddee  v.  Browntield,  2  W.  &  S.  271. 

228 


VOID    JUDICIAL    SALES.  §    a!5 

ings  of  a  term  of  court  held  without  authority  of  hiw  .'  But. 
in  this  State,  the  extreme  ground  is  maintained,  that  a 
lesfishiture  may  always  make  yoid  acts  yalid.  unless  restrained 
by  some  direct  constitutional  provision.'-  In  Massachusetts 
an  executrix's  sale  was  confirmed  in  a  case  where  she  had 
giyen  no  notice,  as  prescribed  by  law,  of  her  petition  for  the 
license  to  sell,  and  the  confirmatory  act  was  declared  valid. 
But  in  this  case  the  heirs  had,  in  writing,  assented  to  the 
sale.''  In  North  Carolina,  when  there  was  doubt  where 
certain  suits  should  be  brought,  or  whether  certain  probate 
proceedings  should  be  before  the  probate  judge  or  i)robate 
clerk,  it  was  held  that  a  statute  validating  proceedings  when 
found  to  be  erroneous  in  either  respect  was  constitutional.^ 
Sales  en  masse  may  undoubtedly  be  validated.^ 

§  58.  Proceedings  Based  on  Void  Judgments  Cannot 
be  Validated. — One  of  the  limitations  on  the  enactment  of 
valid  curative  statutes  is,  that  a  legislature  cannot  make 
immaterial,  by  subsequent  enactment,  an  omission  which  it 
had  no  authority  to  dispense  with  by  previous  statute.*^  It 
is  usually  understood  that  the  legislature  has  no  power  to 
authorize  an  adjudication  against  a  person  without  giving 
him  any  op[)ortunity  of  making  his  defense.  This  he  can- 
not make  unless  he  has  some  notice  of  the  })roceeding 
against  him.  There  must  be  something  to  give  the  court 
jurisdiction  over  his  person.  If,  therefore,  the  proceedings 
had  in  a  court  are  prosecuted  without  jurisdiction,  the  leg- 
islature  cannot   subsequently   make   them    valid.'     An    act 

'  Walpole  V.  Elliott,  18  Ind.  258,  81  Am.  Dec.  a.")8. 

2  76.;  Andrews  V.  Russell,  7  Blackf.  474;  (iritnes  v.  Doe,  S  Hlaikf. 
371. 

■'Sobierv.  Mass.  Gen.  Ilo-pital.  '6  Ciish.4S;-3. 

^  Ward  V.  Lowndes.  Ot;  N.  C.  3(;7;  lirickhouse  v.  Sutton.  OS  X.  C.  KKJ. 
r,  Am.  St.  Kep.  41)7;  Bell  v.  King,  70  X.  C.  3:W;  lleninuj  v.  OtUlaw.  7o 
N.  C.  334. 

•'  Wallace  v.  Feely.  10  Daly,  :!3I. 

'■'  State  V.  Squires,  2i;  Iowa,  340. 

'  Hopkins  v.  Mason,  Ol  Hirh.  4<iO;  Mart  v.  ilrnderson.  17  .Mirii.  -JIS; 
'irillin  V.  Cunningham.  20  <;iatt.  101);   Lane   v.  Nelson.    7'.t   l'a.St.!07; 

22!) 


§    58  VOID    JUDICIAT.    SALES. 

w:is  passed  bv  the  legislature  of  Illinois,  and  being  invoked 
for  tlie  purpose  of  sustaining  proceedings  where  no  service 
of  suuiinons  had  been  made  on  the  defendants,  its  validity 
was  tieuicd  in  an  opinion  by  Caton,  C  J.,  in  the  course  of 
which  he  said:  "If  it  was  competent  for  the  legislature  to 
make  a  void  proceeding  valid,  then  it  has  been  done  in  this 
case.  Upon  this  question  we  cannot  for  a  moment  doubt 
or  hesitate.  They  can  no  more  impart  a  binding  efficacy  to 
a  void  proceeding  than  they  can  take  one  man's  property 
from  him  and  give  it  to  another.  Indeed,  to  do  the  one  is 
to  accomplish  the  other.  By  the  decree  of  this  case,  the 
will  in  (luestion  was  declared  void,  and,  consequently,  if 
effect  be  given  to  the  decree,  the  legacies  given  to  those 
absent  defendants  will  be  taken  from  them  and  given  to 
others,  according  to  our  statutes  of  descents.  Until  the 
passage  of  the  act  in  question,  they  Avere  not  bound  by  the 
verdict  of  the  jury  in  this  case,  and  it  could  not  form  the 
basis  of  a  valid  decree.  Had  the  decree  been  rendered 
before  the  passage  of  the  act,  it  would  have  been  as  com- 
petent to  make  that  valid  as  it  was  to  validate  the  antece- 
dent proceedings,  upon  which  alone  the  decree  could  rest. 
The  want  of  jurisdiction  over  the  defendants  was  as  fatal  to 
the  one  as  it  could  be  to  the  other.  If  we  assume  the  act  to 
be  valid,  then  the  legacies,  which  before  belonged  to  the 
legatees,  have  now  ceased  to  be  theirs,  and  this  result  has 
been  brought  about  by  the  legislative  act  alone.  The  effect 
of  the  act  upon  them  is  precisely  the  same  as  if  it  had 
declared,  in  direct  terms,  that  the  legacies  bequeathed  by 
this  will  to  these  defendants  should  not  go  to  them,  but 
should  descend  to  the  hen-  at  law  of  the  testator,  according 
to  our  law  of  descent.  This,  it  will  not  be  pretended,  they 
could  do  directly,  and  they  had  no  more  authority  to  do  it 
indirectly,  by  making  proceedings  binding  upon  them  which 


Pryor  V.  Downey,   50  Cal.  389,   19  Am.   Rep.   656;   Wells  County  v. 
Fahler,  132  Ind.  426;  Israel  v.  Arthur,  7  Colo.  5. 

230 


VOID    JUDICIAL    SALES.  §    58 

were  void  at  law."  ^  In  the  case  just  cited,  no  sale  had  been 
made.  It  was  a  suit  iu  equity  to  set  aside  a  will.  A  trial 
had  been  had,  resulting  in  favor  of  the  plaintiffs.  It  was 
then  discovered  that  certain  non-resident  minor  defendants, 
who  had  answered  by  guardian  ad  litem,  had  not  been  prop- 
erly served  with  process.  The  effect  sought  by  the  statute 
was  simply  to  validate  a  void  judgment.  In  the  case  of 
Nelson  v.  Rountree,^  it  appeared  that  a  judgment  had  been 
entered  in  ao  action  in  which  the  summons  was  served  by 
publication.  There  was  no  authorit}'  for  such  service, 
because  the  affidavit  for  the  order  of  publication  failed  to 
show  that  a  cause  of  action  existed  against  the  defendants. 
The  judgment  was,  therefore,  void.  The  legislature  subse- 
quently declared  that  "all  orders  of  publication,  heretofore 
made,  shall  be  evidence  that  the  court  or  officer,_authorized 
to  grant  the  same,  was  satisfied  of  the  existence  of  all  the 
facts  requisite  to  granting  such  order  or  orders,  and  shall  be 
evidence  of  the  existence  of  such  facts."  Perhaps  the  con- 
stitutionality of  this  statute  might  have  been  maintained, 
on  the  ground  that  it  simply  created  a  rule  of  evidence,  or 
shifted  the  burden  of  proof  from  one  person  to  another.-^ 
The  supreme  court  of  the  Slate,  however,  regarded  it  as  a 
confirmatory  act,  and  denounced  it  as  follows:  "If  it  was 
competent  for  the  legislature  to  make  this  declaration,  then 
it  was  competent  for  it  to  have  declared  that  to  be  a  judg- 
ment, which  was  before  no  judgment,  and  binding  on  the 
partv  against  whom  formerly  rendered,  when  before  he  was 
not  bound  at  all ;  for  such  is  the  direct  result.  It  is  a  propo- 
sition, not  now  to  be  discussed  at  this  day,  that  the  legisla- 

1  McDaniel  v.  roriell,  10  111.  228,  68  Am.  Dec.  587. 

2  23  Wis.  3(;7. 

3  Tbe  legislature  may  change  the  burden  of  proof  by  enacting  that 
proceedings  theretofore  taken  in  a  court  of  special  or  limited  jiwisdio- 
tion  shall  be  presumed,  prima  facie,  to  have  been  taken  rightfully,  and 
thus  compel  a  person  assailing  such  proceedings  to  show  that  tlie  court 
never  acquired  jurisdiction.     Chandler  v.  Northrop.  24  Uarb.  12'.). 

231 


§    58  VOID    JUDICIAL    SALES. 

tiiro  has  no  such  power."  ^  Speaking  of  an  act  of  assembly 
l)uri)()rling  to  validate  certain  proceedings  in  partition, 
which  were  void  because  one  of  the  defendants  had  no 
notice  of  their  j)endcncy,  the  supreme  court  of  Pennsyl- 
vania said:  ''The  act  itself  is  unconstitutional  and  void,  as 
an  infringement  of  the  inhibition  contained  in  the  ninth  sec- 
tion of  the  declaration  of  rights,  article  ix  of  the  constitu- 
tion, that  no  person  'can  be  deprived  of  his  life,  liberty 
and  property,  unless  by  the  judgment  of  his  peers,  or  the 
law  of  the  land,'  What  is  the  act  but  a  mere  bold  attempt 
to  take  the  property  of  A  and  give  it  to  B?  It  was  not  a 
case  in  which  the  mere  irregularity  of  a  judgment,  or  a 
formal  defect  in  the  acknowledguient  of  a  deed,  was  cured, 
where  the  equity  of  the  party  is  complete,  and  all  that  is 
Avantinff  is  lesfal  form.  Such  were  Underwood  v.  Lillv,'^ 
Tate  V.  Stooltzfoos,'^  Satterlee  v.  Matthewson,^  and  Mercer 
V.  Watson.^  On  the  contrary,  it  is  very  clearly  within  the 
principle  of  Norman  v.  Heist, ^  Greenough  v.  Greenough,^ 
De  Chastellux  v.  Fairchild,^  Bagg's  Appeal,^  Shafer  v. 
Eneu,!^  and  Shonk  v.  Brown."  These  cases  abundantly  sus- 
tain the  position  that  an  act  of  the  legislature  cannot  take 
the  property  of  one  man  and  give  it  to  another,  and  that 
wdien  it  has  been  attempted  to  be  taken  by  a  judicial  pro- 
ceeding, as  a  sheriff's  sale,  which  is  void  for  want  of  juris- 
diction, it  is  not  in  the  power  of  the  legislature  to  infuse 
life  into  that  which  is  dead — to  give  effect  to  a  mere  nullity. 
That  would  be  essentially  a  judicial  act — to  usurp  the  prov- 

1  Nelson  v.  Rountree,  23  Wis.  370. 

2 10  S.  &  R.  97. 

3 16  S.  &  R.  35,  16  Am.  Dec.  546. 

*  16  S.  &R.  191. 

■'■  1  Watts,  330. 

'=  5  W.  &  S.  171,  40  Am.  Dec.  496. 

'  11  Pa.  St.  489. 

8  15  Pa.  St.  18,  53  Am.  Dec.  570. 

9  43  Pa.  St.  512. 
i»  ,54  Pa.  St.  304. 
"  61  Pa.  St.  320. 

232 


VOID    JUDICIAL    SALES,  §    5JS 

ince  of  the  judiciurv — to  forestall  or  reverse  their  decision.^ 
Of  course,  the  legishiture  can  no  more  validate  prooeedinffs 
before  a  court  or  officer  incompetent  to  entertain  and  decide 
them,  than  it  can  vivify  judgments  void  for  want  of  juiis- 
diction  over  the  person  of  the  defendant."' - 

In  Stevens  v.  Enders,"  the  supreme  court  of  New  Jersev 
determined  that,  witii  respect  to  estates  in  remainder,  the 
judges  of  the  court  of  common  pleas  had  no  authority  to 
order  or  approve  a  sale  in  partition.  In  March,  18G1,  the 
legislature  undertook  to  validate  all  sales  made  ic  partition, 
notwithstanding  the  existence  of  estates  in  remainder  or 
reversion,  unless  the  proceedings  for  partition  "shall  have 
])een  reversed  or  set  aside  on  certiorari,  \\v\i  of  error,  or 
other  proceedings  to  review  the  same,  brought  Avithin  three 
years  after  such  partition  sale."'  When  this  statute  came 
before  the  court,  it  was  declared  unconstitutional  in  a  verv 
forcible  opinion,  the  chief  grounds  of  which  were:  1st, 
that  when  the  partition  sale  was  made,  the  court  had  no 
jurisdiction  over  either  the  estate  in  remainder,  or  the 
persons  of  the  remainder-men  ;  2d,  that  as  a  consequence  of 
this  want  of  jurisdiction,  the  estates  in  remainder  must 
have,  notwithstanding  the  partition  sale,  remained  vested 
in  the  remainder-men,  until  the  passage  of  the  act  of  ]March, 
1861;  3d,  that  to  allow  such  estates  to  be  devested  by  such 
act  is  to  take  them  "without  a  hearing,  or  an  opportunity 
for  a  hearing  beino:  given  to  the  owner,"  and  is  an  infringe- 
ment  upon  that  part  of  the  bill  of  rights  in  the  constitution 
of  1844,  declaring  that  one  of  the  inalienahle  j)rivileges  of 
men  "shall  be  that  of  possessing  and  prt)tecting  j)r()]KMty."' 
The  court  also  distinguished  cases  which  had  arisen  und*  r 
the  prior  constitution  from  those  existing  under  the  consti- 
tution of   1844,   showing  that,   prior  to  the  adoption  of  the 

>  llicbards  v.  Rote,  GS  I'a.  St.  2.")."). 

2  Denny  v.  Maltoon,  2  Allen,  3S3;  State  v.  I>obeity.  tiOMc.  :M\  \'\\ur 
V.  Downey,  .50  Cal.  380.  19  Am.  Rep.  6.')(j. 
1  Green.  271. 

233 


§    58  VOID    JUDICIAL    SALES. 

Littor  constitution,  the  power  of  the  legislature  was,  per- 
haps, as  unlimited  as  that  of  the  legislature  of  Rhode  Island, 
as  ostahlished  bv  the  decision  in  Wilkinson  v.  Leland,  but 
that  by  the  constitution  of  1844,  the  powers  of  government 
wore  distributed  into  three  departments — legislative,  execu- 
tive and  judicial — and  each  department  was  forbidden  from 
infrini>ing  upon  the  other.  "Since  this  explicit  marking 
out  of  the  several  departments,  it  has  been  the  general 
()})inion,  so  far  as  I  can  learn,  that  the  legislative  power  is 
the  only  power  vested  in  the  legislature.  The  power  of  the 
legislature  beino;  then  thus  limited  to  the  single  field  of  ac- 
tion,  how  is  the  enactment  of  the  present  law  to  be  vindica- 
ted? If  it  has  the  effect  intended,  it  takes  this  vested 
estate  out  of  these  remainder-men  and  converts  it  into 
money.  The  question  whether  the  owner's  land  shall,  with- 
out his  assent,  be  turned  into  money,  has  always,  at  the 
common  law  and  in  this  State,  been  deemed  one  addressed 
to  the  judicial  discretion.  The  right  to  decide  in  such 
junctures  has  been  always  confided,  in  part,  to  courts  of 
equity."  ^ 

Congress,  by  the  act  of  June  3,  1874,  declared,  respect- 
ing the  territory  of  Utah,  that  "all  judgments  and  decrees 
heretofore  rendered  by  the  probate  courts  which  have  been 
executed,  and  the  time  to  appeal  from  which  has,  by  exist- 
ing laws  of  said  territoiy  expired,  are  hereby  validated  and 
confirmed."  Under  this  statute  a  decree  of  dirorce  was 
attempted  to  be  sustained,  though  but  for  such  statute, 
admitted  to  be  void.  It  was  insisted  that  congress,  in  the 
exercise  of  its  legislative  authority,  could  have  granted  the 
divorce  in  the  absence  of  any  judicial  proceeding,  and  it 
therefore  could,  though  such  proceeding  w'as  void,  validate 
the  divorce.  The  court  was  inclined  to  the  opinion  that  in 
pursuit  of  the  inquiries  necessary  to  be  pursued  in  de- 
termining whether  a  divorce  ought  to  be  granted,  and  in 
granting  it,  judicial  functions  were  exercised  which  it  was 

1  Maxwell  v.  Goetschius,  40  N.  J.  Law,  383,  29  Am.  Rep.  242. 

234 


VOID    JUDICIAL    SALES.  §    58 

not  competent  for  the  legislature  to  perform.  Eespecting 
the  general  authority  of  the  legislature,  and  particularly  of 
congress,  the  court  said:  "It  does  not  possess  absolute 
power.  It  has  no  more  power  to  make  a  valid  decree  out 
of  a  void  one  than  it  has  to  make  such  a  decree  out  of  a 
sheet  of  blank  paper.  It  cannot  make  black  white,  or  white 
black,  or  something  out  of  nothing.  Undoubtedly,  the 
law-making  department  of  the  government  mav  validate 
judgments  and  decrees  voidable  on  account  of  errors  or  ir- 
regularities merely.  If  the  court  has  jurisdiction  of  the 
subject-matter  and  of  the  person,  and  some  essential  step  is 
omitted,  which  the  legislature  had  the  right  to  dispense 
with,  it  may  validate  the  judgment  or  decree,  notwithstand- 
ing the  omission  or  irregularity.  The  legislature  prescribes 
the  methods  and  mode  of  procedure,  and  the  rules  under 
which  judicial  power  maybe  exercised,  and  in  doing  so  may 
dispense  with  such  formalities  as  are  not  essential  to  the 
jurisdiction  of  the  court.  "Whatever  it  may  have  dispensed 
with  by  law  before  action  brought,  it  may  dispense  with  by 
statute  afterward.  It  cannot,  however,  dispense  with  juris- 
diction of  the  subject-matter  of  the  suit,  or  of  the  parties, 
nor  with  the  comphunt,  declaration,  petition,  or  claim. 
There  must  be  some  right,  duty,  or  claim  specified.  There 
must  be  a  subject-matter,  and  it  must  be  such  a  one  as  the 
court  has  the  right  to  take  jurisdiction  of,  and  if  the  judg- 
ment or  decree  is  to  be  based  upon  facts,  they  must  be  first 
ascertained  and  found  to  exist.  These  requirements  arc 
essential  to  remedial  justice,  and  appear  to  be  axiomatic."  ^ 
It  is  usually  said  that  the  legislature  cannot  validate  void 
judicial  proceedings  or  make  good  a  title  dependent  thereon. 
We  are  satisfied  that  this  is  not  universally  true.  We  re- 
gard such  proceedings  as  void,  if,  when  oifered  in  evidence 
under  the  laws  in  force  when  they  were  prosecuted,  they 
must  be  declared  to  be  of  no  effect.     This   hMi)j)ciis   when 

'  In  re  Cbristensen,  17  Utah.  4IJ,  7i)  Am.  St.  Jtep.  704. 

235 


§    OS    ,  VOID    .lUDICIAL    SALES. 

the  court  docs  not  have  jurisdiction  either  of  the  subject- 
matter,  or  of  the  person  of  the  defendant  or  of  the  other 
person  whose  title  is  sought  to  be  devested.  Doubtless  if  a 
judgment  or  other  judicial  proceeding  takes  place  under 
such  circumstances  that  no  notice,  actual  or  constructive, 
was  aiven  to  the  defendant  or  other  person  in  interest,  and 
he  was  thereby  cut  off  from  the  opportunit}^  to  be  heard,  it 
cannot  be  validated  bv  subsequent  legislation,  for  the  legis- 
hiture  could  not,  in  advance,  have  authorized  such  a  pro- 
ceeding. But  there  are  many  instances  in  which  a  judgment 
or  other  judicial  proceeding  must  be  deemed  void,  because 
of  the  omission  of  some  act  or  the  absence  of  some  condition 
with  which  the  legislature  was  perfectly  competent  to  have 
dispensed.  The  application  of  the  general  rule  that  what 
the  legislature  could  have  dispensed  with  in  the  first  instance, 
as  a  condition  precedent  to  the  validity  of  judicial  action,  it 
may  dispense  with  afterwards,  must  require  the  sustaining 
of  many  statutes  curing  judicial  proceedings  which,  before 
the  enactment  of  such  statutes,  were  void.  Thus,  the  Code 
of  Alabanaa  authorizes  the  probate  court  of  that  State  when 
a  mistake  has  been  made  in  the  description  of  lands  in  a 
petition,  order,  or  other  proceeding  resulting  in  their  sale, 
on  application  of  the  purchaser  or  one  claiming  under  him, 
to  correct  such  mistake;  and  this  statute  was  sustained  and 
held  applicable  to  pre-existing  sales  on  the  ground  that  it 
was  merely  conferring  on  these  courts  a  power  analogous  to 
that  possessed  by  courts  of  equity  in  other  cases  of  reform- 
ing or  compelling  the  specific  performance  of  contracts.^ 
This  line  of  decisions,  if  applicable  to  mistakes  of  a  certain 
character,  is  of  questionable  soundness,  for  we  apprehend 
that  the  legislature  could  not,  in  advance,  authorize  an  ex- 
ecutor or  administrator  Avho  a})plied  for  and  obtained  an 
order  for  the  sale  of  one  parcel  to  sell  another  and  entirely 
different  parcel.  The  statute  can  be  sustainable  only  in 
those  cases  in  which  it  appears  that  there  was  an  i^ntentiou 

^  Brown  v.  Williams,  87  Ala.  3.53. 

236 


VOID    JUDICIAL    SALES.  §    58 

to  applv'  for  and  to  authorize  a  sale  of  a  specitic  tract  of 
land,  that  the  parties  to  the  sale  so  underi?tood,  and  that 
the  sale  was  for  a  fair  price,  so  that  the  purchaser  must, 
under  the  circumstances,  though  not  possessed  of  the  legal 
title,  be  regarded  as  equitable  entitled  to  receive  it. 

Executors  Avho  were  appointed  in  the  State  of  the  testa- 
tor's domicile  pursuant  to  a  power  contained  in  his  will,  sold 
his  real  property  situate  in  another  State  without  first  pro- 
curing any  order  or  authorization  or  approval  from  the 
courts  of  the  latter  State.  Subsequently  its  legislature 
validated  the  sale,  and  this  action  was  sustained  on  the 
ground  that  the  will  gave  the  executors  power  to  sell  under 
the  circumstances,  and  in  the  manner  pursued  by  them.  As 
against  the  contention  that  the  propert}'^  had  been  sold  for 
less  than  its  value,  the  court  responded:  ''If  we  could  see 
that  this  was  the  result  of  want  of  contirmation  to  the  re- 
quirements of  the  law  in  the  nuKle  of  making  the  sale,  we 
should  be  inclined  to  think  that  the  plaintiff's  right  to  have 
the  proper  mode  })ur.sued  was  such  that  the  sale  could  not 
be  legalized.  There  is  nothing  in  the  case  that  leads  us  to 
conclude  that  such  was  the  fact.  The  executors  were  not 
obliged  to  sell  at  that  or  any  other  time.  AVe  must  pre- 
sume, then,  that  they  sold  because,  in  their  judgment,  they 
obtained  the  full  value  of  the  property,  and  the  testator 
made  their  judgment  the  sole  arbiter  of  such  question."' 

The  legislature  may  uncpiestionably  authorize  an  executor 
or  administrator  of  a  decedent  to  sell  his  i)roperty  under 
certain  circumstances,  audit  would  be  conq)etent  to  authorize 
such  sale  without  first  requiring  any  petition  or  order  or 
any  previous  notice  to  the  heirs.  But  generally,  not  only 
are  such  petition,  notice,  or  order  required,  but  the  contents 
of  the  petition  are  prescribed,  as  well  as  the  notice  to  be' 
given  and  the  other  proceedings  to  he  taken,  and  any  sul)- 
stantial  omission  lia>  the  effect  of  avoiding  the  sale.       The 

'  Smith  V.  Cullaghan,  W  Iowa.  7>:>-2. 


§    [)S  VOID    JUDICIAL    SALES. 

leo;isIature  may  nevertheless  interpose  and  validate  such 
sales,  at  least  where  the  purchaser  has  acted  in  good  faith, 
and  their  validation  does  not  offend  the  principles  of  natural 
justice.  The  statutes  of  Oregon,  enacted  in  1878,  provide 
that  all  sales  by  executors  and  administrators  of  their  dece- 
dent's real  property  in  that  State  to  purchasers  for  a  valuable 
consideration,  which  had  been  paid  to  such  executors  or 
administrators,  and  which  sales  had  not  been  set  aside  by 
any  court,  but  had  been  contirmed  or  acquiesced  in  by  it, 
should  be  sufficient  to  sustain  an  executor's  or  administra- 
tor's deed,  and  that  such  deed  should  be  sufficient  to  entitle 
the  purchaser  to  all  the  title  which  the  decedent  had  in  the 
property,  and  that  all  h-regularities  in  obtaining  the  order 
of  the  court  for  the  sale  or  in  making  or  conducting  the  sale 
should  be  disregarded.  A  prior  act  of  the  same  State  had 
declared  that  when  any  sale  had  theretofore  been  made  by 
an  executor  or  administrator  under  or  by  virtue  of  any 
license  or  order  of  court,  and  the  sale  approved,  and  the 
purchaser  should  have  paid  the  purchase  money,  and  the 
epcecutor  or  administrator  have  failed  to  make  the  deed;  or 
if  from  any  mistake  or  omission  in  the  deed  or  defect  in  its 
execution  it  should  be  inoperative,  and  the  period  of  five 
years  shall  have  elapsed  after  making  the  sale,  then  the  sale, 
if  made  in  good  faith,  was  confirmed  and  approved,  not- 
withstanding any  irregularities  or  infirmities  in  the  proceed- 
ings prior  to  the  sale.  These  acts  were  by  the  supreme 
court  of  the  State  approved  as  "wholesome  regulations  of 
law,"  and  it  was  declared  that  "the  heirs  to  the  property 
sold  have  no  grounds  for  complaint  on  account  of  the  en- 
forcement of  their  provisions."  The  court  further  said: 
"The  title  of  the  heirs  to  the  property  is  subject  to  the 
paramount  right  of  the  government  to  direct  its  disposition, 
if  necessary,  for  the  purpose  of  liquidating  existing  claims 
against  the  estate  of  the  decedent.  The  heirs'  title  vests 
in  them  by  operation  of  law,  but  is  subject  to  such  right  of 
disposition.     If,  therefore,   the  property  is  sold  under  an. 

238 


VOID    JUDICIAL    SALES.  §    oS 

order  of  the  probate  court  bv  a  duly-appointed  and  qualiHcd 
executor  or  adniiuistrator,  for  the  purposes  mentioned,  and 
a  valuable  consideration  has  been  paid  therefor  by  the  pur- 
chaser in  good  faith,  the  heirs  are  not  deprived  of  an}'  vested 
right,  although  the  conditions  upon  which  the  general  statute 
authorized  the  sale  to  be  made  were  not  strictly  complied 
with.  Uuder  the  general  statute  the  executor  or  adminis- 
trator, in  order  to  obtain  a  license  to  sell  real  property 
belonging  to  the  estate  of  the  decedent,  must  file  a  petition 
containing  certain  facts.  The  probate  court  must  there- 
upon issue  a  citation  to  the  heirs  to  show  cause  why  the 
property  should  not  be  sold  to  pay  claims  against  the  estate, 
which  must  be  returned  with  the  proof  that  it  had  been 
served  in  the  manner  prescribed  by  statute.  In  proceedings 
of  that  character  a  defect  in  the  petition,  citation,  or  in  tlio 
proof  of  the  service  of  the  citation,  will,  under  the  general 
statute,  render  the  sale  a  nullity.  And  although  an  order 
were  made  in  due  form  to  sell  the  property,  and  it  were  sold 
for  its  full  value  b}'  the  executor  or  administrator,  and  the 
proceeds  were  received  by  hiin  and  applied  in  good  faith  to 
the  payment  of  the  debts  against  the  estate,  which  are 
charged  by  law  upon  the  property,  yet  the  heirs  could  re- 
claim it  freed  from  the  charge.  For  the  purposes,  therefore, 
of  preventing  such  flagrant  injustice,  the  said  curative  acts 
were  passed.  And  it  cannot  be -maintained  that  they  were 
adopted  in  order  to  obviate  the  effect  of  mere  informalities. 
The  legislature,  for  the  purpose  of  preserving  to  the  heirs 
their  inheritance,  provided  that  certain  prere(juisites  should 
be  observed  as  a  condition  to  the  right  of  the  representative 
to  legally  sell  it.  The  effect  of  the  said  provision  was,  that 
a  sale  made  without  a  comi)lianco  with  such  prere(|uisites 
was  void,  and  in  order  to  })revent  such  conse(|uence  in  a 
<-ertain  class  of  cases  the  said  curative  acts  were  adopted. 
Their  object  evidently  was  to  render  valid  >ales  made  under 
the  circumstances  si)ecitie<l  in  the  sections  of  said  acts  abovt" 
set  out,  which  would  otherwise  have  been  vitid.      It  was  to 

239 


^    :)8  AOID    JUDICIAL    SALES. 

provout    injiisLice,   which   is   ample   apology   for   ui)holding 
that  character  of  legislation."  ^ 

The  legislature  of  Washington  in  1890  enacted  that  sales 
of  pr()})erty  by  an  executor,  administrator,  or  guardian 
should,  if  the  property  was  in  the  hands  of  a  bona  Jide  pur- 
chaser, be  regarded  as  valid,  if  he  was  ordered  to  make  a 
sale  by  the  court  having  jurisdiction,  had  executed  a  bond 
approved  by  the  proper  judge,  given  notice  of  the  time  and 
place  of  sale,  and  sold  the  premises  accordingly  at  pub- 
lic auction,  and  the  sale  was  confirmed  by  the  court.  It 
appeared  that  before  the  enactment  of  this  statute  a  peti- 
tion had  been  made  for  an  order  to  sell  real  property,  that 
such  })etition  w^as  insufiicient  because  it  failed  to  describe, 
as  the  statute  required,  all  the  real  property  of  which  the 
testator  died  seized,  and  also  failed  to  state  the  amount  of 
the  personal  estate  which  had  come  into  the  administrator's 
hands,  and  how  much,  if  any,  remained  undisposed  of,  and 
further,  that  the  order  to  show  cause  why  the  praj^er  of  the 
petition  should  not  be  granted  had  not  been  published  for 
four  weeks  prior  to  the  time  first  appointed  for  the  hearing 
of  the  petition,  The  court  was  of  the  opinion  that  the 
irreguhirities  complained  of  did  not  affect  the  jurisdiction 
to  order  the  sale,  and  that  the  sale  was  validated  by  the 
statute.  "It  is  true,"  said  the  court,  "the  law  then  pro- 
vided in  relation  to  sales  of  real  estate  that  a  petition  should 
first  be  presented  to  obtain  an  order  therefor,  and  a  citation 
issued  thereon  notifying  parties  interested  to  appear  at  the 
time  set  for  the  hearing.  But  could  not  the  legislature  have 
dispensed  with  this  petition?  It  seems  to  us,  unquestion- 
ably, the  legislature  has  such  power,  as  the  court  acquired 
jurisdiction  of  the  estate  by  the  appointment  and  qualifica- 
tion of  the  administrator;  and  the  administration  of  an 
estate  being  a  proceeding  in  rem,  the  legislature  could  have 
provided  for  a  sale  of  the  lands  without  any  petition  or 
notice  whatever.     If  this  is  true  the  legislature  could  there- 

J  Mitchell  V.  Campbell,  19  Oreg.  198. 

2-10 


VOID    JUDICIAL    SALES.  §    58rt 

after  pass  the  statute  in  question  validating-  sales  where  no 
petition  had  been  filed  when  the  partieular  thinsrs  therein 
<peeitied  appear.  It  is  therefore  immaterial  whether  this 
l)etition  in  (juestiou  and  the  citation  to  appear  at  the  hear- 
ing were  void  in  consequence  of  the  failure  to  give  the  pre- 
scribed notice  or  for  any  other  reason.  The  respondent's 
title  can  safely  rest  on  the  subsequent  proceedings  and  the 
curative  act  aforesaid  under  the  conceded  facts  of  the  case. ' '  ^ 

The  courts  of  Maryland  have,  wq  think,  overlooked  the 
<listinction  supported  by  the  two  decisions  last  cited,  and 
have  maintained  the  broad  pro})osition  that,  when  judicial 
l)roceedings  have  become  fiinal  and  are  then  void,  they  can- 
not subsequently  be  validated,  though  their  invalidity  was 
dependent  upon  acts  or  omissions  .which  the  h'gi>hiturc 
might  have  authorized."' 

§  58rt.  Special  Statutes  of  Limitations  in  Favor  of 
Purchasers  at  Void  Sales. — Frequently,  instead  c»f  assum- 
ing to  validate  void  judicial  proceedings,  the  courts  have 
prescribed  special  statutes  of  limitation  as  against  persons 
-uing  to  recover  property,  the  title  to  which  is  dependent 
upon  such  proceedings.  Where  such  is  the  case,  the  gen- 
eral construction  of  such  statutes  is,  that  they  can  be  ap- 
))Iicable  onh'  as  against  persons  who  were])arties  or  tlu- 
successor  in  interest  of  parties  to  the  judgnient  or  other 
proceeding,  and  further  that  su.ch  proceeding  nuist  not  in 
itself  have  been  void  for  want  of  jurisdiction  over  the  party 
or  predecessor  in  interest  of  the  party  against  whom  it  is 
-ousrht  to  be  asserted.  A  statute  of  Arkansas  declared  that 
••all  actions  against  the  purchaser,  his  heirs,  or  assigns,  for 
the  recovery  of  lands  sold  at  judicial  sales,  shall  I)e  l)rought 
within  five  years  after  the  date  of  such  sale,  and  not  there- 
after; saving  to  minors  and  jjcrsons  of  unsoinxl  mind,  the 
period  of  three  yeaivs  after  such  disability  sh;ill  have  been 
removed.""      It    was    sought   to   apply   tlii>   statute   lor  the 

'  Acker.son  v.  Oictiard.  7  NVanh.  H77. 

2  Willis  V.  Ilodson.  711  Md.  327;  Ilocbev.  Wutrrs.  72  Md.  2(;j. 

(10)  241 


^     ;)S^/  \()ll)    .MDICIAL    SAI.KS. 

l)iiri)()so  of  prevcntiuo-  the  rccovcrv  of  pi-oporl y  which  ha<l 
hoi'u  Iho  suhjod  of  a  suit  in  piirtition,  to  which,  however, 
t  he  owner  was  not  a  parly.  The  court  said  :  "No  question 
of  tilh'  to  the  property  was  involved  or  could  have  been 
tried  in  that  suit.  \o  notice  of  the  suit  was  given  to  any 
of  the  real  owners  of  the  land.  ^lay  the  legislature  of  the 
State  provide  that  strangers  to  the  title  to  land  may  insti- 
tute and  maintain  a  suit  between  themselves,  and  obtain  a 
judicial  saleof  the[)roperty  without  notice  to  the  real  owners, 
and  thereby,  or  by  the  lapse  of  time  thereafter,  without 
adverse  possession  or  notice  to  the  owners,  devest  their  title? 
The  «|uestion  is  susceptible  of  but  one  answer.  Such  an  act 
would  fall  under  the  ban  of  the  constitutional  provision 
which  has  been  already  considered.  It  would  give  to  the 
parties  whose  title  was  to  I)e  devested  no  opportunity  to  be 
heard  respecting  the  judgment  recovered,  or  the  effect  of 
the  proceedings  had.  It  would  be  a  proceeding  which  con- 
demns without  hearing,  proceeds  without  impuiy,  and  ren- 
ders judgment  without  trial.  It  would  not  be  due  process 
of  law.  If  the  purpose  of  this  statute  was  to  devest  the 
title  of  the  owner  Of  land  in  this  way,  it  is  unconstitutional 
and  void.  It  is  not  probable  that  the  legislature  intended 
to  work  such  an  injustice.  The  true  interi)retation  of  the 
statute  probably  is,  that  those  who  claim  under  the  parties 
whose  rights  were  heard  and  adjudicated  in  a  given  suit  may 
not  attack  the  title  of  the  purchaser  under  a  judicial  sale  in 
that  proceeding  five  years  after  the  date  of  the  sale.  Such 
a  construction  avoids  the  constitutional  difficulty,  because 
the  [)ersons  thus  barred  stand  in  privity  with  the  parties  to 
the  suit,  and  have  constructive  notice  of,  and  an  opportunity 
for,  a  hearing  and  a  decision  of  their  claims.  Any  broader 
construction  renders  the  statute  ineffectual.  Laws  of  this 
character  have  frequently  been  ena<-ted  by  the  legislatures 
of  the  various  States.  They  generally  limit  attacks  upon 
judicial  sales  made  in  jH-oceedings  in  the  ntiture  of  proceed- 
ings in  rem,  such  as  guardians'  sales,  administrators'  sales, 

242 


VOID    .HDKIAr,    SALES.  §    o8a 

sales  ill  proccedinos  to  collect  taxes,  and  other  sales  of  this  na- 
ture, in  which  jiirisdictional  notices  nni  auainst  allthc  world 
orall  the  pcrsonsintcrcsted  in  the  propertv  or  in  thcestatcs. 
Hut  the  rule  is.  even  in  these  cases,  that  spetinl  >tatutcs  i)f 
limitation  have  no  ai)i)lication  to  cases  in  whicii  the  notices 
re(|uired  to  be  <>iven  are  so  insudicient  ui  theni<?elves,  or  so 
defectivel}'  serv<^d  that  no  jurixliction  to  take  the  proceed- 
ings airainst  the  parties  interested  is  conferred,  'riius.  in 
Pursely  v.  Ha^'es,^  which  was  an  attack  by  a  war^l  upon  a 
guardian's  sale  protected  by  this  statute:  -Xo  person  can 
question  the  validity  of  such  sale  after  the  la[)se  of  tivc  years 
from  the  time  it  was  made,' — it  was  held  where  one,  with- 
out semblance  of  authority,  acted  as  guardian  in  making  the 
sale,  or  one  who  was  lawfully  appointed  guardian,  made  liie 
sale  without  any  notice  to  the  ward  or  pretense  thereof,  the 
))urchaser  could  not  use  the  statute  to  protect  him  in  his 
title.  In  Boyles  V.  Boyles,-  the  heir  of  adeceased  person  ;ii- 
tacked  an  administrator's  sale  more  than  five  years  after  it 
was  made,  and  the  purchaser  sought  to  .sustain  it  under  this 
statute:  'No  action  for  the  recovery  of  real  otale  -old  bv 
an  executor  can  l»e  >ust;iined  by  any  person  claiming  under 
the  deceased  unless  brought  within  livi'  yeais  next  afttMthe 
sale.*  l)Ut  the  sale  had  been  nnide  without  the  notice  re- 
quired I»\  law.  ami  the  court  held  that  the  -latiile  had  no 
application  to  cases  where  thei'e  was  no  valid  -ale  on  acoimi 
of  the  want  of  the  jurisdictional  notice.'  In  thcStntc  (d' 
Minnesota  the  collection  of  ta.\c>  again>l  i-cyl  c>l;itc  i<  en- 
forced i)\-  mean-  of  the  entry  (d"  a  judgMH'iil  in  1  lie  court  of 
ireneral  juriidiction  upon  a  |)ublicalion  of  a  li-t  of  tlic  rc;il 
estate,  ami  of  notice  (d"  the  tinn-  and  place  wlnn  the  appli- 
cation for  judgUH'Ut  will  be  made.  Aftclllii-  lax  jiidLiineiil, 
is  rendered,  a  !*ale  of  the  |)ropcrty  i-  made  under  a  proper 
notice.      The    statute    tln-n    jjrovid.'s:       ''ihc   judeinent    :md 

I  22  l()sv:i.  11.  I'l. 
-'  .57  lowii.  ."<'.»-'. 

•  ("itinj;  <;oo.l  V.  Ni)rl.\ .  js  Iosv:i.  jss.      lo  '.lii'  siinic  «-ffrcl  in  l.'aiikin 
V.  Miller,  t:^  low.i.  11.  21. 

2\:\ 


§    i)Sa  VOID    .lUDlClAL    SALES. 

sale  herein  provided  for  shall  not  be  set  aside  unless  the 
aetion  in  which  the  validity  of  the  judgment  or  sale  shall 
l)e  called  into  question,  or  the  defense  to  any  action  alleging 
its  invaliditv,  be  brought  within  nine  months  of  the  date  of 
said  sale.  Numerous  cases  have  arisen  in  which  the  pub- 
lished list  and  notice  of  application  for  judgment  failed  to 
properly  describe  tlie  real  estate  in  controvers}^,  and  the 
purchaser  has  endeavored  to  sustain  his  title  under  this 
statute.  The  supreme  court  of  Minnesota  has  uniformly 
held  that  it  was  not  within  the  power  of  the  legislature  to 
declare  that  a  mere  claim  of  title  on  paper  should  ripen  into 
good  title  as  against  the  lawful  owner  of  the  property,  and 
that  the  effect  of  this  statute  must  be  restricted  to  cases  in 
which  the  jurisdictional  notice  was  sufficient  in  itself,  and 
properly  served.^  If  these  special  statutes  of  limitations 
are  insufficient  to  sustain  the  title  of  purchasers  in  proceed- 
ings of  this  nature  unless  the  jurisdictional  notices  are  given 
to  the  parties  interested,  much  less  can  a  statute  be  sus- 
tained which  undertakes  to  enable  strangers  to  the  title  to 
land  to  devest  it  from  the  owner  by  a  judicial  sale  in  a  suit 
})et\veen  themselves  without  any  notice  to  the  owner  of  the 
property,  or  any  adverse  possession.  It  will  be  noticed  that 
this  statute  is  not  in  any  proper  sense  a  statute  of  limita- 
tion. It  does  not  operate  as  the  foundation  of  title  to 
property  in  possession.  By  its  terms  it  gives  to  the  pur- 
chaser at  a  judicial  sale  in  a  proceeding  to  which  the  owner 
is  not  a  party,  the  absolute  title  to  the  owner's  property  five 
years  thereafter,  although  the  owner  may,  during  all  this 
time,  be  in  possession  of  the  property,  or  it  may  be  vacant 
and  unoccujned,  so  that  he  could  not  maintain  an  action  for 
its  possession.  The  five  years'  run  regardless  of  the  pos- 
session from  the  time  of  the  saie.^     The  statute  does  not 

1  Feller  v.  Clark,  36  Minn.  338,  340;   Kipp  v.  Fernhold,  37  Minn.  132, 
334;  Baker  v.  Kelly,  11  Minn.  480;  Smith  v.  Kipp,  49  Minn.  119,  125. 

-  Mitchell  V.  Etler,  22  Ark.  178,  181,  183;  Keatts  v.  Fowler's  Devisees 
22  Ark.  483,  485,  487. 

244 


VOID    .UDICIAL    SALKS.  §    ^)\) 

take  away  certain  forms  of  remed}'  and  leave  llie  property 
right  of  the  parties  unaffected.  Itjdevests  the  property  of 
the  owner  and  yests  it  in  the  purchaser  at  the  judicial  sale 
tivc  years  after  it  was  made  regardless  of  possession  i\ud 
regardh'ss  of  notice  to  the  owner.  It  was  not  within  tin- 
power  of  the  legislature  to  produce  such  a  result  b}^  the 
mere  enactment  of  a  statute.  The  conclusion  is  that  section 
4818,  Sand.  &  11.  Dig.  Ark.  1894,  cannot  be  invoked  to 
sustain  the  title  to  land  under  a  judicial  sale  against  strangers 
to  the  judicial  proceeding  in  which  the  sale  was  made."  ^ 

§  5J>.  Defects,  other  than  Jurisdictional,  Which  have 
been  Held  Incurable. — There  arc  other  defects,  besides 
jurisdictional  ones,  on  account  of  which  void  sales  have  been 
pronounced  incurable.  In  Pennsylvania,  an  execution  sale 
was  void  because  made  after  the  return  diiy  of  the  writ . 
Subsecjuently,  the  legislature  enacted  that:  "All  sales  of 
real  estate  made  ])y  sheriffs  or  coroners,  after  the  return 
day  of  their  several  writs  of  levari  facias,  Jieri  facias,  rcn- 
dUioni  exponas,  or  other  writ  of  execution,  shall  not,  on 
account  of  such  irregularity  in  such  proceedings,  be  set 
nside,  invalidated,  or  in  manner  affected;  and  >uch  sales  so 
made  shall  be  held  as  good  and  valid,  to  all  intents  and  pur- 
poses, as  if  such  sale  has  been  made  on  or  Ijcfore  the  return 
day  of  the  writs  respectively."  The  supreme  court  of  tlif 
State,  in  deciding  a  case  arising  under  this:i<t,  asked  tliex- 
((uestions:  '"Is  this  act  constitutional?  The  sale  being 
made  contrarA'to  legislative  enactment,  and  de«-lared  by  tlii- 
rotn'l  utterly  void,  can  the  legislaf urr  xalidate  >uch  a  -ale  !<• 
the  injury  of  another  party?  In  plain  Knglish,  can  they 
take  one  man's  i^roperty  and  give  it  to  another — ])ro])«'rly 
which  is  se<-ur('(l  to  him  l»y  the  con>t  ilulion  .-uk!  Imw'-?"  It 
then  answered  tlie  t|uestions  as  follows:  "In  this  c.i-r.  ihr 
purchaser  bought  in  the  face  of  a  )-cc»iit  -latnli-  wiiirh  \\y 
was  bound  to  know  and  ol)c\',  an<l  pun  li:i>c(|  with  hi-  'xr- 
o|)cn.      lie  has  no  moral  claim  to  ha\c  the  s:ile  made  i^uuij. 

'  Alexander  v.  Gordon,  101  Fed.  Jlei).  !)!. 

2IJ 


^     ;,«)  -VOID    .H  DICIAI-    SALKS, 

Tlir  Mcl  of  llu'  l(\u-isl:i(ur('  uiiicli  covers  this  case  is  imcon- 
stitutional  and  void."  '  A  sak-  void  on  acoouut  of  fraud 
practiced  1)V  tlic  piircliaser  cannot  he  validated  hv  tlie  leois- 
lature.  It  does  not  come  witiiin  the  principle  of  that  class 
of  cases  in  which  a  legislature  has  been  held  to  have  the 
])o\ver  to  contirni  by  retroactive  laws  the  acts  of  i)ul)lic 
ollicers.  who  have  exceeded  or  imperfectly  executed  their 
aulhoritN. -'  'i'he  supreme  court  of  North  Dakota. refused 
to  concede  the  vali<lily  of  a  statute  curing  the  failure  to 
uive  notice  of  a  mortgage  foreclosure  sale  for  the  full  time 
l)rescribed  by  the  statute,  and  rested  its  denial  upon  the 
general  proposition  that  a  curative  statute  would  be  per- 
mitted tooi)erate  only  when  injustice  would  not  result  from 
denying  its  operation,  saying:  "While  fully  recognizing 
the  power  of  the  legislature  to  cure  defects  which  it  is  un- 
just for  one  to  take  advantage  of,  avc  do  not  believe  that 
this  ease  falls  within  the  rule.  There  is  no  injustice  in  the 
mortgagor  insisting  that  the  full  statutory  notice  be  given. 
The  law  threw  about  him  the  protection  of  full  forty-two 
davs'  notice,  and  to  have  insisted  on  it  at  any  time  before 
the  enactment  of  this  new  act  would  have  involved  no 
injustice  to  the  purchaser.  The  latter  Avould  have  been 
sul)rogated  to  the  rights  of  the  mortgagee,  and  the  mort- 
gagor, desi)itc  his  successful  assault  upon  the  !»ale,  must 
have  paid  the  morlgage  debt.  The  mortgage  would  still 
have  been  a  lien  on  the  property.  So  far  as  the  sale  might 
have  resulted  in  a  surplus,  so  that  subrogation  of  the  pur- 
chaser to  the  rights  of  the  mortgagee  would  not  afford  him 
full  protection,  the  mortgagor  would  be  obliged  to  refund 
to  the  purchaser  such  surplus,  as  a  condition  of  annulling 
the  sale.  The  case  is  not  like  tlie  case  of  a  defective  deed 
or  a  defective  acknowledgment,  the  purchaser  having  paid 
full  value  for  the  propeity.     Nor  is  it  analogous  to  the  case 

1  D.Ue  V.  Medealf.  9  Fa.  St.  110.     See,  also,  Oiton  v.  Noonan,  23  Wis. 

•^  White  Mts.  R.  R.  v.  White  Mts.  R.  R.,  50  X.  II.  50. 

246 


AOID    .HDKIAL    SALKS.  ^     00 


() 


f  :i  contract  which  a  i)arty  oiiuht  in  conscience  to  pi-itVuiu. 
altlioniih  lioklinii'  in  liis  orjisp  ajiainst  it  sonic  technical  cU'- 
fense.  a^  that  slie  was  a  nianicd  woman,  or  that  the  afrrec- 
nient  was  not  in  writinu'.      In  these  cases,  the  court  answers 
the    ariiinnent   tliat    the   k\oislature   cannot   disturb   vested 
rights  b\'  the  conckisive  reply  that  no  one  has  a  \ested  ri^ht 
to  be  unjust,  or  to  do  a  moral   wrong.      Wc  have  carefully 
examined  the  Avhole  law  on  this  subject  of  curative  h-gisla- 
tion.  and  we  have  been  unable  to  find  an  adjudication  which 
has  taken  a  j)osition  so  extreme  as  we  would  be  compelled 
to  take,  should   we  allow  tlii^  statute  to  have  a  retroactive 
effect,    and  thu^  validate  an  absolutely    void  sale,   it    not 
beino;  abhorent  to  natural  justice  for  the  owner  of  thepro])- 
ertv,  under  the  circumstances  of  this  ease,  to  insi>t    upon 
his  strict  legal  rights.      A\'c  do  not  lay  so  much  stress  on  the 
fact  that  the  foreclosure  sale  was  absolutely  void,  for  we 
thinkthat  even  when  a  proceeding  of  any  kind  is  voi^l.  with 
the  exception   of  a    judicial   proceeding   void  for    want  of 
jurisdiction,  it  is  nevertheless  within  the  power  of  the  legis- 
lature to  validate  such  proceeding  by  retroactive  legislation, 
if  it    would  be  grossly  unjust   for  the  pcrxtn  against  whom 
the  healing   law  is  directed  to  insist  upon  his   purely  tech- 
nical rights,  destitute  of  all  ecpiity.   But  thecase  -hould  be  a 
cU'ar  one.      Nothing  short  of  this  shoidd  prompt  a  court  to 
sustain  such  a  law.      All  jurists  agree  that  this  power,  while 
highlv  "bencticial  when  kept  within   i)roper  limits,  is  liable 
to  great  abuse;   and,  while  some  of  the  cases  have  given  it 
M'vx  wide  scope,  yet  the  unmi>takal)lc  trend  both  cd"  recent 
judii  ial  decisions  and  of  recent  constitutional  ehaiiges  i>  in 
the  direction  of  strictly  limiting  this  power. ""  ' 

§  CO.  Inlormilities  may  be  AVaived  l»y  Siihscqiieiit 
Curative  Acts. — Where  a  sale  isxoid  for  >.om<' (lef«'et  in  the 
proceediiiL's.  not  jurisdictional  in  its  character,  it  may.  in 
most   States,  be   validated    bv    a  >ubse<|uent    eurativeac!    of 

1  Kinlayson  v.  I'ctersun.  .".  N.  K.wSr,  :>7  Am.  St.  \ir\,.  :.s(. 

247 


§    (\{)  VOID    .U'DICIAL    SALES. 

the  looislaturc.^  Hence,  acts  have  been  adjudged  to  be  com- 
•stitutional  which  validated  .sales  which  were  void  because 
made  in  violation  of  the  appraisement  laws,-  or  based  on 
defective  levies  or  returns,'^  or  on  charges  of  unlawful  or 
excessive  fees,^  or  made  b}^  an  otiicer  of  another  bailiwick 
from  that  in  which  the  lands  sold  were  situate.^  In  the 
opinion  of  Judge  C'ooley,  ''the  rule  applicable  to  cases  of 
this  description  is  substantially  the  following:  If  the  thing- 
wanting,  or  which  failed  to  be  done,  and  which  constitutes 
the  defect  in  the  proceedings,  is  something,  the  necessity 
for  which  the  legislature  might  have  dispensed  with  by  prior 
statute,  then  it  is  not  beyond  the  power  of  the  legislature 
to  dispense  with  it  by  subsequent  statute.  And  if  the  ir- 
regularity consists  in  doing  some  act,  or  in  the  mode  or 
manner  of  doing  some  act,  which  the  legislature  might  have 
made  immaterial  )jy  prior  law,  it  is  eiiually  competent  t() 
make  the  same  immaterial  by  a  subsequent  law."  '''     A  par- 

1  Lane  v.  Nelson,  79  Pa.  St.  407;  Boycev.  Sinclair,  3  Bnsh,  261;  Beaih 
V.  Walker.  0  Conn.  197;  Booth  v.  Booth.  7  Conn.  3r)0;  Wildes  v.  Van- 
voorhis,  15  Gray,  139;  Brickhouse  v.  Sutton.  99  X.  C.  103,  GAm.  St. 
Hep.  497. 

-  Davis  V.  Slate  Bank,  7  Ind.  316:  Thornton  v.  MclJrath,  1  Diiv.  31!); 
Boyce  v.  Sinclair,  3  Biish,  2(51. 

■■' Mather  V.  Chapman,  6  Conn.  .■)!;  Norton  v.  Pettibone,  7  Conn.  319. 
18  Am.  Dec.  IIG, 

^  Booth  V.  Booth,  7  Conn.  350. 

"'  Menges  v.  Wertman,  1  Pa.  St.  218.  overruled;  Menges  v.  Dentler.  33 
Pa.  St.  495,  75  Am.  Dec.  GIG. 

''  Green  v.  Abraham,  43  Ark.  420;  Johnson  v.  Commrs.,  107  Ind.  15; 
Gordon  v.  San  Diego,  101  Cal.  522,  40  Am.  St.  Rep.  73;  Richman  v. 
Supervisors,  77  Iowa,  513,  14  Am.  St.  Rep.  308;  Cooley's  Const.  Llui. 
371.  Hence,  deeds  not  executed  in  the  mode  prescribed  by  statute, 
may  be  validated  by  a  statute  passed  subsequently  to  their  execution. 
Watson  v.  Mercer,  8  I'et.  .s8;  Chestnut  v.  Shane's  Lessee,  Ki  Ohio,  .599. 
47  Am.  Dec.  .^>87:  Newman  v.  Samuels,  17  Iowa,  528;  Shonk  v.  Brown, 
(il  Pa.  St.  327;  Dulany  v.  IMlghman.  G  G.  &  J.  4G1;  Journeay  v.  Gibson, 
5G  Pa.  St.  57;  Dentzel  v.  Waldie,  30 Cal.  138;  Sidway  v.  Lawson.  58  Ark. 
117;  Williamson  v.  Lazarus,  GG  Ark.  22G,  74  Am.  St.  Rep.  91;  Wistar  v. 
Foster,  4GMinn.  484,  24  Am.  St.  Rep.  241 ;  Shrawder  v.  Snyder,  142Pa. 
St.  1.  Contra:  Pearce  v.  Patton,  7B.  Alon.  162,  45  Am.  Dec.  61 ;  Russell 
V.  Ramsey,  35  111.  362 ;  Ala.  L.,  I.  &  T.  Co.  v.  Boykin,  38  Ala.  510. 

248 


AOID    .irDiriAL    SALES.  §     ClJ 

tition  sale  was  made  to  a  company  of  persons,  but  the  deed. 
])y  their  consent,  was  made  to  one  only,  for  convenience  of 
selling  and  conveying.     The  deed  was  invalid  because  it  did 
not  follow  the  sale  and  order  of  confirmation.     An  act  was 
subsequently  passed  providing  that,  on  satisfactory  proof 
l)eing  made  to  a  court  or  jury  that  the  lands  Avere  fairly  sold. 
in    good  faith  and  for  a  sufficient  consideration,  the  dectl 
should  be  held  valid.     This  act  was  held  free  from  consti- 
tutional objections.^     In  ^Massachusetts;,  an  act  continuing 
deeds  made  by  certain  executors  was  hehl  valid,  though  they 
"had  not  previously  been  appointed  and  given  bond  in  such 
a  manner  as  to  authorize  them  to  execute  the  power  of  sah' 
conferred  by  the  will."'  -     But  in  this  case  the  heirs  at  law 
of  the  testator  released  all  their  interest  in  the  lands  at  ilir 
time  the  executor's  deed  was  executed.     An  cxtremi'  case 
is  that  of  Selsby  v.  Kedlon."*     Justices"  courts  were  author- 
ized to  issue  executions  at  any  time  within  two  years  after 
the  entry  of  judgnxMil.     Nevertheless,  under  a  misapj)!!'- 
hension  of  the  law,  the  practice  prevailed,  to  a  consideral)l(' 
extent,  of  issuing  such  writs  at  any  time  within   Hvc  years. 
The    legislature    passed  an  act   confirming  and  validating 
proceedings  taken  under  Avrits  issued  more  than  two  years 
after  the  entry  of  judgment.     "Was  it  competent  for  the 
legislature,  so  far  as  the  time  of  issuing  was  concerned.  t(» 
enact  that  all  executions  upon  judgments  of  justices  of  the 
|)eace  theretofore   issued  after  the  expiration  of  two.    bul 
before  the  lapse  of  five,  years  from  the  time  the  judgment 
were  rendered,  should  be  deemed  valid   and   regular'     li 
seems  to  me  that   it  was,  and  that  the  act  operated  at  nii<-e 
upon   all  such  executions,   the  invalidity  of  whi.li  had   noi 
already   l)een  adjudged  by   some  competent  romt  of  l:i\\    "i- 
(M|uitv.       I  had  oc<'asion  to  examine  the  (|Uestion.  and  -<iiiie 
of  the  leading  authorities  upon  il.  in  Ila-lirourk  v.  Mihvnu- 

'  Kearnoy  v.  Taylor.  1.")  How.  (i;.  S.)  4it4. 
-'  Weed  V.  Donovan.  lit  Mass.  IS-J. 
•••  l'.»  \Vi>.  17. 

2I'.» 


^     (',0  VOID    .UDICIAL    SAI.K.S. 

ki'c'  am!  tlecni  it  uniu'cossnrv  to  add  to  what  is  there  said. 
It  appears  to  me,  in  the  hmguage  of  Clumcellor  Kent,  to  be 
one  of  those  remedial  statutes,  not  impairing  contraets  or 
<listurbing  absolute  vested  rights,  but  going  only  to  eontirm 
riiihts  already  existing,  and  in  furtiieranee  of  the  remedy, 
J>v  earing  defeets  and  adding  the  means  of  enforcing  oxist- 
ino-  obligations,  the  constitutionality  of  which  has  always 
been  upheld.  The  validity  of  the  judgment  is  not  ques- 
tioned, and  the  obligation  of  the  debtor  to  pay  not  denied. 
After  the  execution  was  issued  and  the  judgment  satistied, 
the  ((uestion  was  whether  such  satisfaction  should  stand, 
and  the  creditor  retain  what  in  justice  and  e(]uity  belonged 
to  him.  or  whether  he  should  make  restoration  to  his  debtor, 
and  be  put  to  a  new  action  to  recover  his  debt.  I  think  an 
net  to  relieve  debtors  in  such  cases  to  be  not  only  just  and 
reasonable,  but  that  it  is  liable  to  no  constitutional  objec- 
tion."' '^ 

Curative  statutes  may  undoubtedly  destroy  the  force  of 
iin  objection  founded  on  a.  mere  informality  ;  and  according 
to  many  of  the  authorities  a  matter  may  be  regarded  as  a 
mere  formality,  within  the  meaning  of  this  rule,  if  the 
legislature  might,  in  the  tirst  instance,  have  authorized  its 
omission.  Thus,  the  legislature  may  unquestionably  provide 
that  judgments  need  not  be  signed  b}^  the  judge,  or  may  be 
entered  on  a  written  waiver  of  service  of  sununons.  Hence, 
it  may  make  valid  judgment  not  so  signed,-''  or  founded  on 
such  waiver  of  service.*  It  has  also  been  held  that  a  sale, 
made  by  a  foreign  executor,  vested  with  a  })ower  of  sale  by 
the  will,  though  void  when  made,  because  not  ordered  nor 
approved  b}^  the  court,  may  be  validated  by  subsequent 
statute,  if  the  right  to  sell  was  not  dependent  on  anything 
but  the  judgment  of  the  executor,  and  the  sale  must  thcre- 

1  13  Wis.  .")0,  SO  Am.  Dec.  718. 
*-  Selsby  v.  Kedlon,  19  Wis.  21. 
•'•  < 'ookerly  v.  Duncan,  87  Ind.  332. 
■*  .Muncie  Bank  v.  Miller,  91  Ind.  4-11. 

250 


VOID    .HDiriAI.    8ALKS.  §     ^'2 

f ore  li:i\'o  inevitably  l)ceii  ordered  and  a|)[)r()\ed.  liatl  projx-r 
application  been  madc.^ 

§    (51,      Liimitation  on    Effect  of   Curative   Statutes. — 

Even  in  those  States  where  the  validity  of  eurative  sttitiites 
iseoneeded,  their  operation  is  usuallv  limited  to  the  oriiiinal 
])arties.  If  a  defendant  whose  projx-rty  has  been  .so  irreir- 
ularly  sold  under  exeeution  that  his  title  is  not  devested. 
>ells  to  a  purchaser  in  uood  faith,  and  for  value,  the  title  of 
the  latter  is  regarded  as  a  xcsted  right,  which  cannot  be 
devested  by  a  subse(|U(Mit  statute.  The  same  rule  usualh' 
])revails  in  regard  to  all  legislation  enacted  for  the  purpose 
of  eontirming  deeds  which  arc  iii\ali(l  for  some  iufornudit  \'. 
The  curati\e  act  does  not  (^x-ratc  against  purchasers  from 
the  grantor  in  good  faith,  and  for  value,  before  its  passage. - 
The  operation  of  curali\'e  acts  has  also  been  denied  where 
the  proceedings  had  been,  prior  to  the  pas.sage  of  the  act, 
])ronounced  void  by  the  judgment  of  a  court  of  competent 
jurisdiction:''  and.  in  Maine,  curatixe  acts  do  not  o|)er:tte  to 
<-hange  the  result  of  suits  previously  pending.' 

§  (52.  General  Ketleotions  Coucerniuj;  Curative  Stat- 
utes.— It  must,  we  supl>o»^e.  be  conceded  thai,  prior  to  \\\v 
adoption  of  the  fourteenth  amendment .  there  \\a>nn  |iro- 
\ision  in  the  constitution  of  the  I'nited  States  which  pro- 
hibited the  State  legislatures  froni  enacting  curative  statutes 
validating  prior  judicial  sales  and  proccedin.gs.  The  pi'ovis- 
ion  of  sec,  10.  art.  1.  forbitlding  States  from  pa-sing  ix 
jiosf  facto  law>,  applies  e\clusi\-ely  to  criminal  matters  .and 
proceedings,   and  does  not  iidiibit    retros|)ectivc   legislation 

'Smith  v.  C;illijili;in.  (;(■  Iowa.  .')<;•_'.  In  1  orsK  r  v.  I'orstcr.  IJ'.t  M:i-s. 
.").">'.>,  it  was  decided  tliat  a  tax  .<:ile.  void  for  want  of  noiier  of  sale,  can- 
not b(f  made  valid  by  .statute. 

-  Newman  v.  Samuels.  17  Iowa,  .'>2S;  IWinlon  v.  Seovers.  l.'  Iowa.  :iM»; 
'rijotnpson  v.Morj^an.f;  Minn.2!CJ;  Stierwood  v.  Fleming,  -jr. 'IVn  Siipp. 
-ins:  Wri<;ht  v.  Hawkins,  -js  'I'ex.  A'^•l•.  Menfjes  v.  Dentler.  :i;?  I'a.  St.  IH."). 
7.')  Am,  Dec.  (IK;,  overruling  .Menkes  v.  Whitman.  1  Pa.  St.  -Jis. 

•  .Mayor  v.  Horn,  id  Md.  t'.M. 

^  Adams  v.  I'almer.  :>1  .M<'.  Ino. 


^     (12  VOID    .JUDICIAL    SALES. 

in  «'ivil  ln:lttor:^.^  Tho  same  section  also  provides  that  no 
State  shall  pass  any  "law  impairing-  the  ol)ligation  of  con- 
tracts/' The  word  contracts  is  sufficiently  comprehensive 
to  embrace  conveyances.  *  Hence,  a  State  legislature  cannot 
annul  or  diminish  the  effect  of  a  valid  conveyance.'^  Bui 
the  federal  constitution,  while  it  prohibited  the  impairing  of 
valid  contracts,  did  not  inhibit  the  validation  of  void  con- 
tracts, nor  the  creation  of  obligations:-'  nor  did  it  prevent 
the  State  legislatures  from  devesting  vested  rights  in  any 
case  where  they  could  do  so  without  impairing  the  obliga- 
tion of  some  pre-existing  contract.^  The  iifth  amendment 
to  the  constitution  of  the  United  States  declares  that  "no 
person  shall  be  deprived  of  life,  liberty  or  property,  with- 
out due  process  of  law ;  nor  shall  private  property  be  taken 
for  public  use  without  just  compensation.""  The  prohibi- 
tions contained  in  this  amendment  are  addressed  to  the 
federal  legislature,  and  do  not  operate  as  limitations  of  the 
powers  of  any  of  the  State  legislatures.''  One  of  the 
ijuarantees  contained  in  the  fourteenth  amendment  is  as 
follows:  "Nor  shall  any  State  deprive  any  person  of  life, 
liberty  or  propert}-,  without  due  process  of  law.  nor  deny 
to  any  person,  within  its  jurisdiction,  the  ecjual  protection  of 
the  laws."  This  provision,  in  the  language  of  Chief  Justice 
AVaite,  speaking  for  the  supreme  court  of  the  United  States, 
"adds  nothing  to  the  rights  of  one  citizen  against  another. 

1  Stoi-y  on  the  Const.,  sees.  ISJ.},  1:^98;  State  v.  Squires,  26  Iowa,  3-10; 
Watson  V.  Mercer,  8  l^et.  88;  Carpenter  v.  Pennsylvania.  17  Ilow.  (U. 
S.)  450;  Calder  v.  Bull,  3  Dall.  38(5. 

-  Story  on  theConst.,  see.  1376;  Fletcherv.  Vock,  6  Craneb.  137;  Peo- 
ple V.  Piatt.  17  Johns.  19.");  Crogan  v.  S.m  Francisco,  18  Cal.  oOO; 
Louisville  v.  University.  IT)  B.  Mon.  (Ivy.)  64-2. 

■'  Story  on  the  Const.,  sec.  1398;  Satterlee  v.  ilathewson,  2  Pft.  38(»; 
Mutual  B.  I.  Co.  V.  Winne.  20  Mont.  40;  Ewell  v.  Daggs,  108  U.  S.  151 ; 
Gross  V.  Mortgage  Co.,  108  U.  S.  488. 

^  Story  on  the  Const.,  sec.  1398;  Satterlee  v.  Mathewson.  2  Pet.  380: 
Calder  v.  Bull,  3  Dall.  380;  Freeland  v.  "Williams,  131  U.S.  415. 

•'' Barron  v.  Mayor  of  Baltimore.  7  Pet.  243;  Withers  v.  Buckley,  20 
How.  (U.  S.)  84. 

252 


VOID    JUDICIAL    SALES.  §    02 

It  simply  funiislies  an  additional  guarantee  against  any 
oneroachnient  bv  the  States  upon  the  fundamental  rights 
^vhich  belong  to  every  eitizen  as  a  member  of  society/"^ 
lUit  whether  this  amendment  may,  in  any  case,  operate  as 
n  prohibition  against  curative  laws  passed  by  the  States  is, 
perhaps,  an  immaterial  in(juirv,  for  the  reason  that  most, 
if  not  all.  of  the  State  constitutions,  contain  limitations 
which,  in  substance,  withhold  the  right  to  deprive  any  per- 
son of  his  property  without  due  })rocess  of  law. 

Those  curative  acts  which  impart  validity  to  judicial  or 
execution  sales  otherwise  void,  necessarilj^  result  in  the 
transfer  of  one  person's  property  to  another,  without  the 
assent  of  the  former.  Before  the  passage  of  the  act,  prop- 
erty belonged  to  A.  After  its  passage,  the  same  property, 
without  any  act  on  the  part  of  A  or  B,  and  solely  through 
\hv  operation  of  the  curative  statute,  is  vested  in  the  latter. 
Such  a  statute  cannot  be  maintained  on  the  ground  that  it 
]>.  a  judicial  determination,  that  the  title  of  B  is  paranu)unt 
to  that  of  A.  for  the  State  constitutions  prohibit  the  legis- 
latures from  exercising  judicial  functions.  These  constitu- 
tions also  protect  vested  rights  and  prohibit  the  taking 
of  property  from  one  person  and  giving  it  to  another,  at 
least  in  all  cases  where  there  has  been  no  resort  to  due  proc- 
<•->  of  law.-'  But  the  words  ''property''  and  "vested  rights," 
within  the  meaning  of-these  constitutions,  are  ditticult  of 
•  h'tinition.  They  seem  not  to  refer  to  the  legal  title  luerely 
— not  to  insure  t<j  a  man  that  which  at  law  belongs  to  him, 
l)iit  whi(;h  in  equity  belongs  to  another.  The  most  justifi- 
il)le  curative  legislation  is  that  which  docs  no  more  than  to 

'  United  States  v.  Craikshank,  U2  U.  S.  r)42,  3  Cent.  L.  J.  205,  8  Ch.  L. 
\.  'j:«.  See  City  of  Portland  v.  Cit}-  of  I'.angor,  05  Me.  120,  3  Cent.  I.. 
.1.  fJ51. 

-  Cooley's  Const.  Lini..  cti.  xi.  To  ascertain  the  meaning  of  ''due 
l>roces8  of  law,''  and  of  equivalent  terms,  see  //*.;  Kennard  v.  Louisiana. 
■>I  V.  S.  4S().  8  Cb.  L.  X.  320;  "Walker  v.  Sauvinet,  3  Cent.  L.  J.  445,  02 
I  .S.  00;  .Murray  v.  Hohoken  L.  \  I.  Co.,  IS  How.  (U.  S.)  '272;  Story  on 
I  lie  Const.,  sec.  104  L 

253 


^     {')'>  ^()ll)    .HDICIAL    SALKS. 

oivc  a  Iciiiil  sanction  to  a  title  which  was  theretofore  good 
ill  eiiuitv.'  So,  it  is  said,  k'nislatures  may  trausimite  a 
moral  into  a  U'oal  ol)ligation  ;'  and  that  "a  party  has  no 
vested  riiiht  in  a  defense  based  upon  an  informality  not 
affecting  his  substantial  ('(juities ;  "•'  that  "courts  do  not 
reoard  rii>hts  as  vested  contrary  to  the  justice  and  e(]uity  of 
the  case;'"^  that  "a  party  cannot  have  a  vested  right  to  do 
a  wronu;"""'  that  "the  rules  whiidi  determine  the  legislative 
power  in  such  cases  are  broad  rules  of  right  and  justice.'  '' 
So,  after  all.  the  limitations  inserted  in  the  fundamental  h'nvs 
jiro  80  construed  that  their  api)lication  depends,  not  on  set- 
'  tied  princi[)les,  but  upon  notions  of  right  and  justice.  A 
man's  title  may  be  ])erfect  at  law.  It  may  also  be  unas- 
sailable; in  (Miuity.  He  has.  nevertheless,  no  vested  right  in 
it  which  he  may  hold  })aramount  to  legislative  control,  un- 
less, in  addition  to  his  i)crfect  title  at  law  and  in  equity,  hi.s 
title  also  nieets  the  approval  of  the  judge  before  whom  it  is 
(juestioned;  the  latter,  in  withholding  or  granting  stu'h  ap- 
proval, being  governed  by  certain  rules  of  right  and  justice 
existinu'  in  his  own  conscience,  but  not  susceptible  of  that 
accurate  description  which  would  enable  us  to  recognize 
them  in  the  future,  and  rely  on  them  for  our  protection  and 
o-uidance.      Such,  at  least,  seems    to  be  the  result    of  the 

& 

weight  of  the  authorities. 

With  respect  to  curative  acts  affecting  judicial  and  execu- 
tion sales,  two  rules  are  commonly  put  forth  as  tests  of 
their  constitutionality.  The  Hrst  is,  that  what  the  legislature 
could  have  dispensed  with  before  the  sale  it  may  dispense 
Avith  afterwards;'  and  the  second  is,  that  courts  do  iu)t  re- 
gard rights  as  vested  contrary  to  the  justice  and  ecpiity  of 

^  Chestnut  v.  Shane.  Ki  Ohio.  r)l>'.t.  47  Am.  Dec.  387. 

"-  Weister  v.  Hade,  fri  Pa.  St.  4s(». 

•■■  Cooley's  ( 'onst.  Liin.  371). 

••  State  v.  Newarii,  3  Dutch.  107. 

''  Foster  v.  l^ssex  liank,  10  Mass.  245. 

"  Story  on  the  Const.,  sec.  19.')8. 

'  Cooley's  Const.  ]>in).  371 ;  Feri;iison  v.  Williams,  r)8  Iowa,  717. 

25i 


VOID    .IIDICIAL    SALES.  §     ()2 

the  case,  hut  w  ill  doterminc  the  Icgishillvc  power  on  hioad 
rules  of  right  and  justice.  Neither  rule  has  heen  universally 
aeceptcd  and  folloncd.  Thus,  though  a  statute  may  un- 
(|uestionaI)ly  authorize  property  to  be  sold  for  taxes,  with- 
out the  aid  of  any  judicial  proceedings  whatever,  yet  where 
such  proceedings  were  retjuired,  and  were  so  prosecuted  as 
to  be  void  for  want  of  jurisdiction  over  the  defendant,  it 
was  held  that  they  i-ould  not  he  made  valid  by  subse(|iient 
legislation.^  So,  while  l(\<ii.sljitures  may  authorize  guardians 
and  others  to  soil  [)roperty  lielongingto  persons  not  .tw/  //ov'.s*, 
without  applying  to  court  for  authority  so  to  do,  yet  where 
such  applications  are  rc(|uired  to  be  made  to  some  court, 
and  the  proceedings  of  such  court  are  void  for  want  of 
jurisdiction,  they  cannot  be  subsc(|uently  made  valid.-  If 
the  rights  of  one  whose  property  has  been  sold  at  a  void 
sale  are  not  to  be  regarded  as  vested  except  when.  •*ui)on 
broad  rules  of  right  ami  justice,"  they  should  l)e  s(»  i-c- 
garded,  then  the  distinction  between  jurisdictional  and  other 
defects  is  ininiaterial.  For  it  may  be,  and  frccjuently  is,  as 
unjust  to  urge  a  jurixliclional  defect,  as  it  is  to  urg<'  souie 
other  irregularity,  such,  for  instance,  as  the  oniis>ioii  to 
give  notice  of  the  sale  In  the  tirstcase  the  sale  \nu\  ha\o 
been  fair,  a  good  i>rice  realized,  and  the  proceeds  applieil 
to  pay  the  debts  of  the  defendant:  while,  in  the  se<'ond 
case,  the  pro])crly  may  lia\c  been  sucriticcd  for  want  of  the 
noti(,'e  of  the  sale.  Jf  void  judicial  or  execution  sales  uiay 
be  made  \alid,  it  would  seem  to  be  on  the  ground  that  llie 
|)in'cha>ei-,  l)y  the  payment  of  the  money  and  it>  application 
to  the  benetil  of  the  defendant ,  obtained  ane(|uity  which 
the  legislature  might  recogniz<'  and  transform  into  a  legal 
title;'  that,  in  >ueh  a  case,  the  per>on  whose  projx-rty  was 
sold  ha>  left  lo  him,  alter  the  sale  and  convewmce,  a  mere 
tei'hniial   and  uiwon^rjonalde  del"en^e:    and  that,  in  •«uch   a 

'  XelsDti  V.  fioiinticc,  2:>  U'i-.  :!(;7. 

^  See  'inlr.  «ec.  .")S. 

• 'I'hointon  v.  Mcfiratli.  I   i'liv.  il.Vi. 

2.30 


^    02  \OlT>    JUDICIAL    SALES. 

defense,  there  can  be  no  vested  right.  But  this  view  of  the 
«(uestionis  not  invariably  correct  nor  necessaril}^  conclusive. 
In  the  first  place  everybody  is  conclusively  presumed  to  be 
acquainted  with  the  law.  It  cannot,  therefore,  be  expected 
that  a  sale,  made  in  such  a  manner  as  to  be  inoperative 
under  the  then  existing  law,  will  realize  a  fair  price.  Many 
persons  must  be  deterred  from  bidding,  because  they  know 
or  suspect  that  the  sale  is  invalid.  He  who  purchases  must 
be  taken  to  act  with  his  eyes  open,  and  as  bidding  for  a 
mere  chance,  rather  than  for  an  unquestionable  title.  All 
this  is  equally  true,  whether  the  defect  be  that  the  judg- 
ment is  void,  or  that  the  sale  is  invalid  from  some  other 
vice.  He  whose  property  is  sacrificed  against  his  will,  by 
being  exposed  to  the  hazard  of  avoid  sale,  has,  even  in  the 
broad  rules  of  right  and  justice,  rights  as  sacred  as  those  of 
the  speculating  purchaser.  The  latter  is  a  mere  volunteer, 
risking  his  money  in  defiance  of  the  law.  He  is  not  im- 
posed on  in  any  manner,  nor  is  there  any  contract  between 
liim  and  the  owner  of  the  property  to  urge  by  way  of 
estoppel.  But  if  an  execution  or  judicial  sale  is  void  at  law, 
it  is  usually  equally  void  in  equity.  The  purchaser- has  no 
title  which  is  recognized  in  anj^  prevailing  system  of  law. 
The  judgment  debtor  is  under  no  obligation  which  will  war- 
rant an}^  court  in  compelling  him  to  convc}-  or  surrender  his 
property  to  the  purchaser.  Why  should  not  those  rights 
which  confer  a  perfect  title  to  property,  both  at  law  and  in 
(Mjuity,  be  held  to  be  vested  rights?  If  such  rights  are  not 
vested,  then  what  additional  claim  to  protection  must  the 
owner  of  property  have  before  his  rights  become  vested? 
Must  he  have  a  moral  right  or  title?  and,  if  so,  what  does 
the  word  moral  mean  in  this  connection?  Has  it  some 
definite  signification?  or  must  it,  for  all  the  practical  pur- 
poses of  litigation,  vary  so  as  to  correspond  with  the  moral 
perceptions  of  the  different  judges?  In  pronouncing  the 
opinion  of  the  supreme  court  of  California,  in  an  action 
wherein  an  heir  had  sued  to  recover  his   inheritance,  Mr. 

256 


VOID    JUDICIAL    SALES.  §    G2 

Justice  McKinstry  very  forcibly  said:  "As  to  any  vague, 
indeterminate  and  indeterminable  'moral  equity,'  if  any 
such  exist,  it  may  well  be  doubted  whether  we  can  recog- 
nize such,  since  the  courts  have  no  standard  by  which  to 
estimate  its  sufficiency  or  effectiveness.  Even  if  we -could 
adopt,  however,  the  measure  of  rights  suggested  by  some 
of  the  cases,  we  are  not  prepared  to  hold  that  the  plaintiff 
in  this  action  may  not  insist  upon  his  complete  legal  and 
equitable  title,  without  violating  any  principle  of  morality.^ 
Admitting  that  the  estate  of  the  ancestor  comes  to  the  heir 
burdened  with  the  debts  of  the  former,  it  is  still  the  right 
of  the  latter,  when  courts  are  organized,  or  are  required  by 
the  constitution  to  be  organized,  for  the  settlement  of  the 
estates  of  decedents,  to  have  the  debts  ascertained  and  the 
property  applied  by  a  tribunal  of  competent  jurisdiction. 
And,  upon  any  theory,  the  doctrine  of  estoppel,  which  is 
claimed  to  impose  an  imperfect  duty  capable  of  being 
ripened  into  a  perfect  obligation  by  the  legislative  will,  can 
have  no  application,  unless  a  party,  by  his  own  contract  or 
other  voluntary  act,  has  phiced  himself  in  such  an  attitud(^ 
that  it  would  be  a  viohition  of  sound  morality  on  his  i)art 
for  him  to  adhere  to  and  insist  on  his  legal  and  equitable 
rights.  It  ought  not  to  be  made  to  apply  to  this  plaintiff 
merely  because  he  was  a  party,  as  an  infant,  to  a  pretended 
legal  proceeding." 2 

1  8  Gill,  290. 

2  Pryor  v.  Downey,  50  Cul.  403.  19  Am.  Rep.  G56. 


(17)  2o7 


§    ()3  VOID    JUDICIAL    SALES. 


CHAPTER  VII. 


CONSTITUTIONALITY   OF   SPECIAL   STATUTES   AUTHORIZING 
INVOLUNTARY     SALES. 

SECTION. 

GiJ.    General  Nature  of  Legislative  Sales,  and  of  the  Special  Acts 
under  which  they  are  Made. 

64.  Of  the  Power  of  the  Legislature  to  Provide  for  the  Involuntary 

Sale  of  Property. 

65.  The  Constitutionality  of  Special  Laws  Authorizing    the  Sale    of 

Property  Denied. 

66.  The  Constitutionality  of  Special  Laws  Authorizing  the  Sale  of 

Property  Sustained. 

67.  Acts    Authorizing    Sales  by    Administrators,  Constitutionality 

AfRrmed. 

68.  On  Whom  Power  of  Sale  may  be  Conferred  by  Special  Acts. 

69.  Of  Special  Acts  Authorizing  the  Sale  of  Lands  to  Pay  Debts. 

70.  Special  Act  need  not  Require  a  Bond  for  the  Application  of  the 

Proceeds. 

71.  Acts  Authorizing  the  Sale  of  the  Lands  of  Co-tenants. 

72.  Decisions  Limiting  the  Power  of  Legislatures  to  Pass  Special 

Laws  for  the  Sale  of  Property. 

§  63.  General  Nature  of  Legislative  Sales  and  of  tbe 
Special  Acts  under  which  they  are  Made. — A  question 
very  closely  allied  with  judicial  sales,  is  that  of  involuntary 
sales  made  by  authority  of  the  legislature,  without  the  as- 
sent of  the  owner  of  the  property,  and  in  the  absence  of  any 
judicial  declaration  concerning  the  necessity  or  propriety  of 
the  sale.  Many  special  statutes  have  been  enacted  purport- 
ingto  confer  authority  on  guardians,  administrators,  trustees 
and  other  persons  to  sell  and  convey    the    estates    of  their 

258 


VOID    JUDICIAL    SALES.  §    64 

wards,  or  of  minor  heirs,  or  of  other  cesiuisque  trust.  Some- 
times entire  strangers  have  been  appointed  as  commissioners 
and  invested  with  powers  of  sale.  Generally,  in  statutes  of 
this  character,  the  legislature  assumes  the  existence  of  a 
state  of  facts,  making  a  sale  either  necessary  or  expedient; 
and,  therefore,  empowers  some  one  to  make  a  sale,  either 
according  to  his  discretion,  or  in  the  manner  and  under  the 
circumstances  designated  in  the  special  statute.  Frequently 
bonds  are  exacted  for  the  purpose  of  avoiding  the  misap- 
})ropriation  of  the  funds  to  be  realized.  Often  a  report  of 
the  sale  is  required  to  be  made  to  some  judicial  tribunal. 
The  functions  of  this  tribunal  are  usually  restricted  to  in- 
quiring and  determining  whether  the  sale  has  been  conducted 
in  conformity  with  the  special  act.  Whether  the  sale  is 
required  to  be  confivmed  by  some  court  or  not,  it  is  evident 
that  the  authority  for  selling  is  purely  legislative.  This 
class  of  sales  may,  therefore,  be  styled  "legislative  sales." 

§  04.  Of  the  Power  of  the  Legislature  to  Provide  for 
the  Involuntary  Sale  of  Property. — There  can  be  no  (pies- 
tioii  of  the  authority  of  the  legislature,  by  general  laws, 
and  in  proper  cases,  to  authorize  the  compulsory  alienation 
of  real  and  personal  property.  The  power  of  the  English 
parliament  is  absohite.  It  can  regulate  the  succession  to 
the  crown,  or  alter  the  established  religion  of  the  land. 
Theoretically,  at  least,  it  has  uncontrovertible  dominion 
over  both  persons  and  property.  Hence,  it  is  no  cause  for 
wonder  that  "  [)rivate  acts  of  parliament"  are  recognized  as 
among  the  "  assurances  l)y  matter  of  record."  In  this 
country,  however,  the  legislature  of  every  State  possesses 
;in  auth(nity  mucli  more  restricte<I  than  that  of  parliament. 
In  none  of  our  courts  would  a  statute  purporting  to  take 
property  from  one  person  and  vest  it  in  another  })e  treated 
with  any  respect.  The  constitutions  of  most,  and,  perhaps, 
of  all  of  our  States,  vest  the  legislative  and  the  judicial 
functions  of  governiiKMit    in   separate  tribunals,  and   forbid 

2.');» 


§    r4  VOID    JUDICIAL    SALES. 

either  tribunal  from  encroaching  upon  the  jurisdiction  of 
the  other.  Hence,  a  statute  professing  to  determine 
conflicting  claims  of  title,  would  be  as  inoperative  as  a 
statute  directly  transferring  title  from  one  person  to  another. 
But  every  legislature  possesses  powers  under  which  it  may 
enforce  the  collection  of  debts,  provide  for  the  management 
of  the  property  of  persons  incapable  of  caring  for  them- 
selves, and  also  for  the  partition  of  estates  held  in  co-ten- 
ancy. The  exercise  of  these  powers  often  involves  the 
compulsory  sale  of  property.  Before  a  debt  can  be  col- 
lected by  legal  compulsion,  its  existence  must  be  deter- 
mined. This  determination  can  be  made  only  by  some 
judicial  authority.  Hence,  a  statute  declaring  that  A  is 
indebted  to  B,  or  that  the  lands  of  A  shall  be  sold  to  pay 
the  debts  owing  from  him  to  B,  is  unquestionably  void, 
unless  the  legislature  enacting  it  was  competent  to  exercise 
judicial  functions,  or  the  existence  of  the  debt  from  A  to  B 
is  settled  by  some  judicial  tribunal.  So  if  A  should  die, 
his  heirs  would  unquestionably  succeed  to  his  estate,  sub- 
ject to  the  light  of  his  creditors  to  enforce  their  claims 
against  the  estate;  and  also  subject,  in  case  of  the  minority 
or  other  incapacity  of  the  heirs,  to  the  power  of  the  gov- 
ernment to  make  the  estate  contribute  to  their  education  or 
support.  But  the  existence  of  debts  against  A  could,  dur- 
ing his  lifetime,  be  established  only  by  judicial  inquiry. 
Does  this  inquiry  become  any  less  judicial  or  any  more 
legislative  in  its  nature  by  reason  of  A's  death?  So,  in  the 
event  that  the  minor  or  other  heirs  of  A  are  alleged  to  be  in 
circumstances  in  which  the  sale  of  their  estate  is  either 
essential  to  their  support,  or  highly  beneficial  to  their  inter- 
ests, the  truth  of  the  allegation  ought  to  be  determined  in 
some  manner;  and  this  determination,  if  it  does  not  invari- 
ably call  for  the  exercise  of  judicial  functions,  can  unques- 
tionably be  most  satisfactorily  accomplished  through  their 
aid.  Hence,  the  compulsory  sale  of  property  is  usually 
governed  by  general  laws,  under  which  the  necessity  and 

260 


VOID    JUDICIAL    SALES.  §    65 

expediency  of  the  sale  tire  made  the  subject  of  judicial  in- 
quiry, and  the  authority  to  proceed  depends  upon  the  judg- 
ment or  order  of  some  judge  or  court.  Any  departure 
from  these  general  laws  is  fraught  with  great  danger,  and 
is  likely  to  result  in  inconsiderate  action,  if  not  in  unmiti- 
gated plunder.  Hence,  in  nearly  one-half  of  the  States  of 
this  union,  constitutional  provisions  directly  inhibit  special 
laws  licensing  the  sale  of  the  lands  of  juinors  and  other 
persons  under  legal  disability.^ 

§  05.  The  Constitutionality  of  Special  Laws  for  the 
Sale  of  Property  Denied. — In  those  States  whose  constitu- 
tions do  not  directly  forbid  the  enactment  of  special  laws 
authorizing  one  person  to  sell  the  property  of  another,  such 
laws  have,  when  drawn  in  question  before  the  courts,  been 
assailed:  1st,  as  contravening  the  spirit  of  constitutional 
})rovisions,  requiring  all  laws  of  a  general  nature  to  have  a 
uniform  operation  ;  2d,  as  in  opposition  to  that  provision  of 
the  constitution  of  the  United  States,  which  is  also  incor- 
parated  in  most  of  the  State  constitutions,  that  no  person 
shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law;^  and,  3d,  as  involving  the  exercise  of  judi- 
cial functions  not  possessed  by  the  legislature. 

The  house  of  representatives  of  the  State  of  New  Hamp- 
shire, in  June,  1827,  asked  t^ie  judges  of  the  supreme  court 
of  judicature  of  that  State  the  following  question:  '"Can 
the  legislature  authorize  a  guardian  of  minors,  by  a  special 
act  or  resolve,  to  make  a  valid  conveyance  of  the  real  estate 
of  his  wards?"     The  judges  answered  as  follows:      '-The 

'  Cooley'8  Const.  IJm.  (3d  Ed.),  p.  107.  note. 

*'^his  provision  may  be  found  in  both  the  fifth  and  the  fomtcentli 
amendments  to  the  constitution  of  the  United  States.  As  employed  in 
the  former,  it  is  a  limitation  on  the  powers  of  the  general  government 
only.  In  the  latter  amendment,  it  is  designed  as  a  limitation  on  llie 
jtowerH  of  the  States.  ]{arron  v.  Mayor  of  IJiiltimore.7  I'et.  24^^\  Witiieis 
V.  Buckley,  20  How.  (U.  S  )  84;  United  Slates  v.  Cniikshauk,  it2  U.  S. 
.">42,  8  Cent.  L.  .1.  2!)r>,  8  Ch.  L.  N.  233.  See  City  of  Portland  v.  City  of 
JJangor,  05  Me.  120,  3  Cent.  1..  J.  <ir>l. 

201 


§    G5  VOID    JUDICIAL    SALES. 

objection  to  the  exercise  of  such  a  power  by  the  leo;islature 
is,  that  it  is  in  its  nature  both  legislative  and  judicial.  It 
is  the  province  of  the  legislature  to  prescribe  the  rule  of 
law;  but  to  apply  it  to  particular  cases  is  the  business  of 
the  courts  of  law.  And  the  thirty-eighth  article  in  the  bill 
of  riirhts  declares  that,  '  in  the  government  of  this  State, 
the  three  essential  powers  thereof ,  to-wit :  the  legislative, 
executive  and  judicial  ought  to  be  kept  as  separate  from, 
and  iudependent  of,  each  other  as  the  nature  of  a  free 
government  will  admit,  or  as  is  consistent  with  that  chain 
of  connection  that  binds  the  whole  fabric  of  the  constitu- 
tion in  one  indissoluble  bond  of  union  and  amity.'  The 
exercise  of  such  a  power  by  the  legislature  can  never  be 
necessary.  By  the  existing  laws,  judges  of  probate  have 
very  extensive  jurisdiction  to  license  the  sale  of  the  real 
estate  of  minors  by  their  guardians.  If  the  jurisdiction  of 
the  judges  of  probate  be  not  sufficiently  extensive  to  reach 
all  proper  cases,  it  may  be  a  good  reason  why  that  jurisdic- 
tion should  be  extended,  but  can  hardly  be  deemed  a  suffi- 
cient reason  for  the  particular  interposition  of  the  legisla- 
ture in  an  individual  case.  If  there  be  a  defect  in  the  laws 
they  should  be  amended.  Under  our  institutions  all  men 
are  viewed  as  equal,  entitled  to  enjoy  equal  privileges,  and 
to  be  governed  by  equal  laws.  If  it  be  fit  and  proper  that 
license  should  be  given  to  one  guardian,  under  particular 
circumstances,  to  sell  the  estate  of  his  ward,  it  is  fit  and 
proper  that  all  other  guardians  should,  under  similar  cir- 
cumstances, have  the  same  license.'  This  is  the  very  genius 
and  spirit  of  our  institutions.  And  we  are  of  opinion  that 
a  particular  act  of  the  legislature  to  authorize  the  sale  of  the 
land  of  a  particular  minor,  by  his  guardian,  cannot  be  easily 
reconciled  with  the  spirit  of  the  article  in  the  bill  of  rights 
just  cited. 

"  It  is  true  that  the  grant  of  such  a  license  by  the  legis- 
lature to  the  guardian  is  intended  as  a  privilege  and  benefit 
to  the  ward.     But,  by  the  law  of  the  land,  no  minor  is  capa- 

262 


VOID    JUDICIAL    SALES.  §     65 

ble  of  assentinsr  to  a  sale  of  his  real  estate  in  such  a  man- 
ner  as  to  bind  himself.  And  no  guardian  is  permitted,  bv 
the  same  law,  to  determine  when  the  estate  of  his  ward 
ought  and  when  it  ought  not  to  be  sold.  In  the  contem- 
jdation  of  the  law,  the  one  has  not  sufficient  discretion  to 
judge  of  the  propriet}^  and  expediency  of  the  sale  of  his 
estate,  and  the  other  is  not  to  be  intrusted  with  the  power 
of  judging.  Such  being  the  general  law  of  the  land,  it  is 
presumed  that  the  legislature  would  be  unwilling  to  rest 
the  justification  of  an  act  authorizing  the  sale  of  a  minor's 
estate  upon  any  assent  which  the  guardian  or  the  minor 
could  give  to  the  proceeding. 

"The  question,  then,  is,  as  it  seems  to  us,  can  a  ward  be 
deprived  of  his  inheritance,  Avithout  his  consent,  by  an  act 
of  the  legislature,  which  is  intended  to  apply  to  no  other 
individual?  The  fifteenth  article  in  the  bill  of  rights  declares 
that  no  subject  shall  be  deprived  of  his  property  'but  by 
judgment  of  his  peers  or  the  law  of  the  land.'  Can  an  act 
of  the  legislature,  intended  to  authorize  one  num  to  sell  the 
land  of  another  without  his  consent,  be  'the  law  of  the 
land,'  within  the  meaning  of  the  constitution?  Can  it  be 
'the  law  of  the  land'  in  a  free  country?  If  the  question 
))roposed  to  us  can  be  resolved  into  these  questions,  as  it 
appears  to  us  it  may,  w-e  feel  entirely  confident  that  the 
representatives  of  the  people  of  this  State  will  agree  with 
us  in  the  opinion  we  feel  ourselves  bound  to  express  on  the 
ijuestion  submitted  to  us:  That  the  legislature  cannot 
authorize  the  guardian  of  minors,  by  a  special  act  or  resolve, 
to  make  a  valid  conveyance  of  the  real  estate  of  his  wards."  ^ 

The  supreme  court  of  the  State  of  Tennessee,  in  the  year 
1h3(3,  delivered  an  opinion  in  full  accord  with  that  of  the 
judges  of  New  Hampshire.  In  1825,  the  legislature  of  the 
tirst  named  State  passed  an  act  authorizing  the  guardians  of 
certain   minors  therein   specified  to  sell  certain   lands  in  the 

'  OjiiDion  of  the  .Iiidgc-.  4  X.  II.  ^>7i. 


f    (56  VOID    JUDICIAL    SALES. 

best  manner  they  could,  and  declaring  that  the  assets  to  be 
produced  by  such  sale  should  be  assets  for  the  payment  of 
the  debts  of  the  ancestor  of  the  minors.  Under  this  act 
a  sale  was  made.  Some  years  afterwards  a  bill  was 
brought  by  the  minors  against  the  grantee  of  the  pur- 
chaser, to  recover  possession  of  the  lands  sold,  and  also 
for  an  accounting  for  the  rents  and  profits.  The  legislative 
sale  was  adjudged  void,  because  it  deprived  the  minors  of 
their  property  without  due  process  of  law,  and  because  the 
act  purporting  to  authorize  it  was  a  usurpation  of  the 
authority  of  the  judiciary.^ 

§  G^.  The  Constitutionality  of  Special  liaws  Author- 
izing Sales  Sustained. — Notwithstanding  the  decisive  stand 
taken  by  the  courts  of  New  Hampshire  and  Tennessee 
against  special  statutes  authorizing  sales  by  guardians,  such 
statutes  have  been  sustained  in  other  States  so  frequently, 
and  in  such  varying  circumstances,  that  their  constitution- 
ality is  now  almost  free  from  doubt.  In  1792,  Asaph  Rice, 
by  a  resolve  of  the  general  court  of  the  commonwealth  of 
Massachusetts,  was  authorized  to  sell  and  convey  certain 
real  estate,  of  which  he  was  tenant  by  curtesy,  and  of  which 
his  children  were  seized  in  fee  of  the  remainder  expectant 
on  the  death  of  their  father.  A  sale  was  made  by  virtue  of 
the  authority  conferred  by  this  resolve.  After  the  death  of 
the  father,  the  children,  by  a  writ  of  entry,  sought  to  re- 
cover their  inheritance.  Parker,  C.  J.,  delivered  the  opinion 
of  the  court,  in  the  course  of  which  he  said:  "If  the 
power  by  which  the  resolve  authorizing  the  sale  in  this  case 
was  passed  were  of  a  judicial  nature,  it  would  be  very  clear 
that  it  could  not  have  been  exercised  by  the  legislature 
without  violating  an  express  provision  of  the  constitution. 
But  it  does  not  seem  to  us  to  be  of  this  description  of 
power;  for  it  was  not  a  case  of  a  controversy  between  party 
and  party;   nor  is  there  any  decree  or  judgment  affecting 

^  Jones  V.  Perry,  10  Yerg.  59,  30  Am.  Dec.  430. 

264 


VOID    JUDICIAL    SALES.  §    66 

the   title  to  property.     The  only  object  of  the  authority 
granted  by  the  legislature,  was  to  transmute  real  into  per- 
sonal estate,  for  purposes  beneficial  to  all  who  were  inter- 
ested therein.     This  is  a  power  frequently  exercised  by  the 
legislature  of  this  State,  since  the  adoption  of  the  constitu- 
tion, and  by  the  legislatures  of  the  province  and  of  the 
colony  while  under  the  sovereignty  of  Great  Britain,  anal- 
ogous to   the   power  exercised  by  the  British  parliament, 
time  out  of  mind.     Indeed,  it  seems  absolutely  necessary 
for  the  interest  of  those  who,  by  the  general  rules  of  law, 
are  incapacitated  from  disposing  of  their  property,  that  a 
power  should  exist  somewhere  to  convert  lands  into  money. 
For  otherwise  minors  might  suffer,  although  having  prop- 
erty, it  not  being  in  a  condition  to  yield  an  income.     This 
power  must  rest  in  the  legislature  of  this  commonwealth, 
that  body  being  alone   competent    to  act  as   the  general 
o-uardian  and  protector  of  those  who  are  disabled  to  act  for 
themselves.     It  was  undoubtedly  wise  to  delegate  the  au- 
thority toother  bodies,  whose  sessions  are  regular  and  con- 
stant, and  whose  structure  may  enable  them  more  easily  to 
understand  the  merits  of  the  particular  applications  brought 
before  him.     But  it  does  not  follow  that,  because  the  power 
has  been  delegated  by  the  legislature  to  courts  of  law,  it  is 
judicial  in  its  character.     For  aught  we  see,  the  same  au- 
thoritv  might  have  been  given  to  the  selectmen  of  each  town, 
or  to  the  clerks  or  registers  of  the  counties,  it  being  a  mere 
ministerial  act,  certainly  requiring  discretion,  and  sometimes 
knowledo^e  of  the  law  for  its  due  exercise,  but  still  partak- 
inty  in  no  degree  of  the  characteristic  of  judicial  power.  No 
one  imagines  that,  under  this  general  authority,  the  legis- 
lature could  deprive  a  citizen  of  his  estate,  or  impair  any 
valuable  contract  in  which   he  might  be  interested.     But 
there  seems  to  be  no  reason  to  doubt  that,  upon  his  appli- 
cation, or  the  application  of  those  who  properly  represent 
him,  if  disabled  from  acting  himself,  a  beneficial  change  of 
his  estate,  or  a  sale  of  it  for  purposes  necessary  and  con- 

26,'3 


^    GG  VOID    JUDICIAL    SALES. 

venient  for  the  lawful  owner,  is  a  just  and  proper  subject 
for  the  exercise  of  that  authority.  It  is,  in  fact,  protecting 
him  in  his  property,  which  the  legishiture  is  bound  to  do, 
iind  enabling  him  to  derive  subsistence,  comfort  and  educa- 
tion from  property  which  might  otherwise  be  wholly  useless 
during  that  period  of  life  when  it  might  be  most  beneficially 
employed."^  If  it  be  conceded  that  an  infant,  lunatic  or 
other  person,  incompetent  to  act  for  himself,  is  in  need  of 
ready  money  for  his  sustenance,  or  for  any  other  pressing 
necessity,  of  course  the  conversion  of  his  estate  into  money 
w^ould  be  authorized  by  any  tribunal  having  competent  au- 
thority. Legislative  licenses  authorizing  a  sale  under  such 
circumstances  are  generally  sustained. ^  Nor  is  any  neces- 
sity required  to  support  the  exercise  of  this  legislative 
iiuthority.  It  seems  to  be  sufficient  that  the  sale  is  one  to 
which  the  incompetent  person  might,  if  siti  juris,  probably 
give  his  assent.  Hence,  a  special  statute  may  be  supported 
if,  without  any  apparent  necessity,  it  sanctions  the  conver- 
sion of  real  into  personal  estate.  This  conversion  is  pre- 
sumed to  be  benelicial  to  the  minor,  or,  at  least,  not  to  be  a 
■destruction  of  his  rights  of  property. "^  Acts  have  been 
sustained  which  authorized  guardians  to  convey  lands  sold 
by  the  ancestor  of  their  wards;*  or  which  empowered  the 
guardian  of  a  lunatic  to  sell  the  lands  of  the  latter  to  pay 
off  an  incumbrance  thereon  ;^  or  which  authorized  guardians 
to  convey  real  estate  for  the  purpose  of  effecting  a  compro- 

1  Rice  V.  Parkman,  16  Mass.  329. 

2  Stewart  v.  Griffith,  33  Mo.  23,  82  Am.  Dec.148;  Davidson  v.  Koeh- 
ler,  76  Ind.  412;  Hojt  v.  Sprague,  103  U.  S.  613. 

3  Carroll  v.  Olmstead,  16  Ohio,  251;  Dorsey  v.  Gilbert,  11  G.  &  J.  87; 
Davis  V.  Helbig,  27  Md.  452,  92  Am.  Dec.  646;  Thurston  v.  Thurston,  6 
K.  r.  296;  Soowhill  v.  Snowhill,  3  N.  J.  Eq.  20;  Br«nham  v.  Davidson, 
51  Cal.  3.52;  Soheir  v.  Mass.  Gen.  Hospital,  3  Gush.  483;  Xorris  v. 
€lymer,  2Pa.  St.  284;  Clark  v.  Van  Surlay,  15  Wend.  436;  Clusky  v. 
Burns.  120  Mo.  507;  Eblingv.  Dryer,  149  N.  Y.  460. 

■•  Estop  V.  flutchman,  14  S.  &  R.  435. 

5  Davidson  v.  .Johonot,  7  Met.  388,  41  Am.  Dec.  448. 

26G 


VOID    JUDICIAL    SALES.  §    66 

inif^e  with  persons  claiming  adversely  to  the  minors.^  The 
case  last  cited  determined  the  constitutionality  of  an  act 
j)assed  ))y  the  legislature  of  Missouri  in  the  year  1847.  This 
act  recited  that  certain  adverse  chiiuis  existed  to  a  tract  of 
land  in  the  city  of  St.  Louis;  that  the  parties  in  interest 
had  agreed  upon  a  compromise,  to  accomplish  which  mutual 
deeds  of  quitclaim  were  essential;  and  then  the  act  author- 
ized the  guardians  of  desijrnated  minors  to  execute  the  con- 
es c 

veyances  necessary  to  consummate  the  compromise.  Such 
a  conveyance  was  executed,  and  was  upheld,  though  it  was 
subsequently  ascertained  that  the  minor's  title  was  valid, 
and  that  of  the  adverse  claimants  unfounded — the  court 
saying:  "It  is  a  question  of  power,  and  whilst  it  is  con- 
ceded that  the  legishiture  has  no  power  to  transfer  A's 
property  to  B,  or  to  authorize  anj^one  else  to  do  so — sup- 
posing A  and  B  to  be  adults  and  competent  to  transact  their 
own  affairs — the  legislature  may  authorize  the  guardian, 
father  or  mother  of  a  lunatic,  infant  or  idiot,  to  transfer 
the  estate  of  the  minor,  kmatic  or  idiot.  It  will  be  observed 
that  the  title  of  Pelagic,  and  her  daughter  Antoinette,  was 
a  disputed  one.  That  the  claimants  under  Mackay  and 
Rutgers  really  had  no  valid  title  is  not  important.  This 
was  ascertained  after  the  decision  of  this  court,  in  the  case 
of  Norcum  v.  D'Oench,  but  it  was  a  matter  of  conjecture 
V)efore.  The  adults  had  an  undoubted  right  to  compromise. 
If  the  legislature  has  power  to  authorize  third  persons, 
guardians,  fathers,  mothers,  etc.,  to  convey  the  undisputed 
title  of  an  infant,  without  regard  to  insuring  the  proceeds 
for  the  benefit  of  the  infant,  why  should  they  be  deprived 
of  the  right  to  authorize  the  compromise  of  an  unsettled 
claim." -^  "The  doctrine  is  firmly  established  by  the  great 
weight  of  American  decisions,  and  sustained  by  the  most 
cogent  and  unanswerable  reasoning,  that  special  acts  of  the 
legislature  authorizing  or  confirming  sales  of  lands  by  guard- 

'  Thomas  v.  I'ullU,  ofi  Mo.  217. 
2  Ibid. 

267 


§    GG  VOID    JUDICIAL    SALES. 

inns  arc  constitutional  when  their  object  is  simply  to  pro- 
vide a  change  of  investment,  and  not  to  devest  the  beneficiary 
of  property  rights,  and  in  the  absence  of  special  or  excep- 
tional constitutional  limitations,  and  that  such  acts  are  not 
judicial,  but  the  i)roper  exercise  of  a  legislative  power. 
Such  a  power  necessarily  resides  in  the  legislative  depart- 
ment of  the  government,  as  parens  pafrice,  to  prescribe 
such  rules  and  regulations  as  may  be  proper  for  the  man- 
agement, superintendence,  and  disposition  of  the  property 
of  infants,  lunatics,  and  persons  who  are  incapable  of  man- 
aoins:  their  own  affairs."  ^  If  in  the  exercise  of  the  power 
of  eminent  domain,  it  is  necessary  to  acquire  property 
belonging  to  an  infant,  the  legislature  may,  either  by  general 
or  special  law  authorize  his  guardian  to  sell  and  convey  such 
property. - 

Though  homestead  property  is  deemed  to  be  vested  in  the 
husband  and  wife  as  joint  tenants,  the  legislature  may, 
if  either  becomes  hopelessly  insane,  authorize  the  pro- 
bate court  of  the  county  in  which  the  property  is  situate, 
upon  the  application  of  the  sane  spouse,  to  sell,  convey,  or 
mortgage  such  property.  Such  a  statute  "is  a  general 
remedial  law  intended  to  enforce  the  legal  obligation  of  a 
hopelessly  insane  husband  or  Avife  to  apply  his  or  her  prop- 
erty, in  case  of  necessity,  to  the  support  of  the  sane  husband 
or  wife  and  their  minor  children;  and  therefore  is  no  more 
objectionable  on  constitutional  grounds  than  would  be  a 
statute  to  enforce  the  performance  of  any  other  private  or 
public  obligation."  Nor  does  it  constitute  any  sufficient 
objection  to  such  statute  on  constitutional  grounds  that  it 
fails  to  require  of  the  sane  spouse  any  bond  or  other  se- 
curity for  the  proper  application  of  the  proceeds  of  the  sale.-^ 

When    contingent  or  uncertain   interests   are  vested  in 

1  LouisTille,etc.,  Ry.  Co.  v.  Blythe,69  Miss.  939,  30  Am.  St.  Rep.  599. 

2  Hodgdon  v.  Southern  P.  Ry.  Co.,  75  Cal.  642;  Ebling  v.  Dreyer,  149 
X.  Y.  460;  Cluskey  v.  Burns,  120  Mo.  567. 

3  Rider  v.  Reagan,  114  Cal.  667. 

268 


VOID    JUDICIAL    SALES.  §    67 

minors  or  may  subsequently  become  vested  in  persons  not 
in  being,  there  is  no  doubt  of  the  authority  of  the  legishi- 
ture,  especially  with  the  consent  of  the  adults  or  persons  in 
being,  to  authorize  the  sale  of  the  property,  and  to  convey 
title  free  of  any  interest  vested  in  such  minors  or  which 
might  otherwise  thereafter  become  vested  in  persons  not  in 
being.  ^ 

§  G7.  Acts  Authorizing  S^,les  by  Adiuiuistrators;  Con- 
stitutionality of,  Affirmed, — The  cases  cited  in  the  preced- 
ing section  affirmed  the  constitutionality  of  laws  authorizing 
sales  to  be  made  by  the  guardians  or  parents  of  persons 
incapable  of  acting  for  themselves.  AVe  <hall  now  refer  to 
cases  involving  the  legislative  delegation  of  a  like  authoritv 
to  administrators.  The  weight  of  the  authorities  is  lo  the 
effect  that  the  power  maybe  conferred  on  an  administrator 
as  well  as  on  a  parent  or  guardian.-  In  considering  the 
validity  of  a  sale  made  under  an  act  of  this  character,  the 
supreme  court  of  the  United  States  said:  "On  principle, 
this  proceeding  is  sustainable.  On  the  death  of  the  ancestor, 
the  land  owned  by  him  descends  to  his  heirs.  But  how  do 
they  hold  it?  They  hold  it  subject  to  the  payment  of  the 
tiebts  of  the  ancestor  in  those  States  where  it  is  liable  to 
such  debts.  The  heirs  cannot  alien  the  lands  to  the  preju- 
dice of  creditors.  In  fact  and  in  law  they  have  no  right 
to  the  real  estate  of  their  ancestor,  except  that  of  possession, 
until  the  creditors  shall  be  paid.  As  it  regards  the  ques- 
tion of  power  in  the  legislature,  no  objection  is  perceived  to 
their  subjecting  the  lands  of  the  deceased  to  the  payment  of 
his  debts,  to  the  exclusion  of  his  personal  })r()pcrty.     The 

•Matter  of  Field,  131  N.  Y.  184;  Ebling  v.  Dreyer,  140  N.  Y.  4G0; 
Scales  V.  Curfman,  53  S.  W.  Rep.  75.5  (Tenn.  Ch.  App.). 

2  Doe  V.  Douglas,  8  Blackf.  10,  44  Am.  Dec.  732;  Kibby  v.  Chitwood, 
4  Men.  91,  16  Am.  Dec.  143;  Williamson  v.  Williamson,  3  S.  &  M.  716, 
745,  41  Am.  Dec.  (536;  Gannett  v.  Leonard,  47  Mo.  205;  Ilolman's  Heirs 
V.  Bank  of  Norfolk,  12  Ala.  309,  415;  Herbert  v.  Herbert,  Breese,  354, 
12  Am.  Dec.  102;  Todd  v.  Flournoy,  50  Ala.  00,  28  Am.  Tlep.  758;  Wat- 
son V.  Oaies,  58  Ala.  017;  Tindal  v.  Drake,  00  Ala.  170. 

269 


§    68  VOID    JUDICIAL    SALKS. 

loi^islaturo  regulates  descents  iincl  the  conveyance  of  real 
estate.  To  define  the  rights  of  debtor  and  creditor,  is  their 
common  duty.  The  whole  range  of  remedies  lies  within 
their  province.  They  nui}'  authorize  a  guardian  to  convey  the 
lands  of  an  infant;  and,  indeed,  they  may  give  the  capacity 
to  the  infant  himself  to  convey  them.  The  idea  that  the 
lands  of  an  infant  which  descend  to  him,  cannot  be 
made  responsible  for  the  payment  of  the  debts  of  the  an- 
cestor, except  through  the  decree  of  a  court  of  chancery,  is 
novel  and  unfounded.  So  far  from  this  being  the  case,  no 
doubt  is  entertained  that  the  legislature  of  a  State  have 
power  to  subject  the  lands  of  a  deceased  person  to  execution 
in  the  same  manner  as  if  he  were  living.  The  mode  in 
which  this  shall  be  done  is  a  question  of  polic}',  and  rests  in 
the  discretion  of  the  legislature.  The  law  under  which  the 
lot  in  dispute  was  sold  decides  no  fact  binding  on  creditors 
or  heirs.  If  the  administratrix  and  Brown  have  acted 
fraudulentU'  in  procuring  the  passage  of  this  act,  or  in  the 
sale  under  it,  relief  may  be  given  on  that  ground.  But  the 
act  does  nothing  more  than  provide  a  remedy,  which  is 
strictly  within  the  power  of  the  legislature."^ 

§  6S.  On  Whom  Power  of  Sale  may  be  Conferred  l>y 
Special  Acts. — It  does  not  appear  to  be  necessary  that  the 
person  authorized  by  a  special  act  of  the  legislature  to  sell 
the  property  of  another  should  be  an  administrator  or 
guardian  by  regular  appointment  of  the  courts  of  the  State 
where  the  sale  is  to  be  made,  nor,  indeed,  that  he  should 
have  any  official  character  whatever,-  nor  that  he  should  be 
a  relative  of  the  person  for  whom  he  is  authorized  to  act. 
His  authority  rests  on  the  special  act,  and  not  on  his  other 
relations  with  the  incompetent  person.  The  legislature  of 
the  State,  wherein  the  land  lies,  may  authorize  its  sale  and 

1  Watkins  v,  Hulman,  16  Pet.  62;  Clusky  v.  Burns,  120  Mo.  567;   Car- 
gile  V.  Fernald,  63  Mo.  304. 

2  Bruce  v.  Bradshaw,  69  Ala.  360. 

270 


VOID   JUDICIAL    SALES.  §    6S 

conveyance  by  an  administrator  residing  and  a[)pointed  in 
another  State  or  by  his  attorneys.^  In  Kentucky  an  act 
was  sustained  which,  after  reciting  that  no  one  would  admin- 
ister upon  the  estate  of  a  deceased  person,  appointed  three 
commissioners  Avith  power  to  sell  so  much  of  such  estate  as 
should  be  necessary  to  pay  his  debts.-  An  act  of  the  legis- 
lature of  California,  approved  May  6,  18(»1,  purported  to 
authorize  Mary  Ann  Paty  Dayley,  the  mother  and  guardian 
of  Francis  William  Paty,  a  minor,  to  sell  any  or  all  of  hi;* 
real  estate.  In  November,  prior  to  the  passage  of  this  act^ 
Mrs.  Dayley  had  been  appointed  guardian  of  her  son  by  the 
probate  judge  of  Plymouth  county,  in  the  State  of  Massa- 
chusetts. In  May,  1856,  she  received  alike  appointment 
from  the  chief  justice  of  the  Hawiian  Islands.  She  was 
never  appointed  guardian  in  California.  She  made  sales 
and  conveyances  under  this  act.  These  sales  were  declared 
void,  not  on  the  ground  that  the  statute  was  unconstitutioniil , 
but  because  she  had  never  been  appointed  guardian  in  Cal- 
ifornia. "The  statute,"  said  the  court,  "does  not  purport, 
in  any  part  of  it,  to  nominate  Martha  Ann  Paty  Dayley 
guardian  of  the  infant;  it  simply  assumes  that  she  is,  or — 
when  the  sale  shall  be  made — will  be  guardian  of  his  estate; 
exercising  the  ordinaiT  functions,  and  charged  with  the 
ordinary  responsibilities  of  guardians.  The  power  was  given 
to  her  in  her  capacity  as  guardian,  and  not  as  an  individual ; 
as  she  failed  to  secure  an  appointment  as  guardian,  the  at- 
tempted sale  was  void."  '^  Frequently  property  is  vested  in 
trustees  for  the  benetit  of  persons  incapable  of  acting  for 
themselves.  "When  this  is  the  case,  the  legislature  may 
authorize  sales  and  conveyances  to  the  same  extent  as  when 
property  is  in  the  hands  of  administrators  or  guardians.  In 
1802,  Mary  Chirk  devised  certain  lands  to  Benjamin  Moore, 

'  Holman'8   Heirs  v.  Bank  of  Norfolk,  12   Ala.  3G9,  415;  Walking  v. 
llolman,  l»i  Pet.  2.-);  IJoon  v.  Bowers,  30  Miss.  240,  G4  Am.  Dec.  159. 

^  Shehan's  Heirs  v.  Barnett's  Heirs,  (i  Mon.  593. 

^Paty  V.  Smith,  50  Cal.  159;  McNeil  v.  First  Cong.  Society,  GO   Cal. 
105,  4  W.  C.  Itep.  424. 

271 


§    68  VOID    JUDICIAL    SALES. 

and  two  other  persons,  in  trust:  1st,  to  receive  the  rents, 
issues  and  profits  thereof,  and  pay  the  same  to  Thomas  B. 
CUirke  during  his  life;  2d,  after  the  death  of  Thomas  B. 
Clarke,  to  convey  the  premises  to  his  lawful  issue  in  fee ; 
;id,  if  he  should  not  have  lawful  issue,  then  to  convey  the 
premises  to  Clement  C.  Moore.  In  1814,  the  legislature, 
upon  the  petition  of  Thomas  B.  Clarke,  and  with  the  con- 
currence of  the  trustees  named  in  the  will,  and  of  Moore, 
the  contingent  remainder-man,  passed  an  act  authorizing 
the  sale  of  a  portion  of  the  real  estate  for  the  purpose  of 
creating  an  income  for  the  benefit  and  support  of  Thomas 
B.  Clarke,  his  family  and  children;  the  principal,  after  his 
death,  to  be  paid  according  to  the  trusts  in  the  will  of  Mary 
Clarke.  In  1815,  a  further  act  was  passed  reciting  that 
Moore,  the  contingent  remainder-man,  had  conveyed  his 
interest  to  Thomas  B.  Clarke,  and  "authorizing  Clarke  to 
do  and  perform  every  act  in  relation  to  the  property,  which 
the  act  of  1814  had  directed  might  be  performed  by  trustees 
to  be  appointed  by  the  chancellor;  but  no  sale  was  to  be 
made  by  Clarke  until  he  procured  the  assent  of  the  chan- 
cellor; and  when  a  sale  was  made,  the  proceeds  were  to  be 
invested,  and  an  annual  account  of  the  principal  rendered, 
but  the  interest  Clarke  was  authorized  to  apply  to  his  own 
use  and  benefit,  and  for  the  maintenance  and  education  of 
his  children.'''  Sales  were  made  under  these  acts.  The 
constitutionality  of  these  acts  was  discussed  in  the  highest 
courts  of  the  State  and  of  the  nation,  and  was  always  sus- 
tained. It  was  held:  1st,  that  it  was  competent  for  the 
legislature  to  change  the  trustees  appointed  by  the  will  of 
Mrs.  Clarke,  and  to  vest  their  powers  in  Thomas  B.  Clarke; 
2d,  that  it  was  equally  within  the  power  of  the  legislature 
to  provide  for  the  sale  of  the  interest  of  the  children  of 
Clarke,  in  order  that  they  might  at  once  have  the  benefit  of 
the  estate  for  their  better  support  and  education  during  the 
most  helpless  period  of  their  lives. ^      The  litigation  arising 

1  Clarke  v.  Van  Surlay,  15  Wend.  436 ;  Leggett  v.  Hunter,  19  X.  Y.  445. 

272 


VOID    JUDICIAL    SALES.  §    08 

under  the  will  of  Mrs.  Clarke  and  these  special  acts  of  the 
legislature  was  carried  on,  in  various  courts  and  forms, 
during  nearly  half  a  century ;  and  has  occasioned  the  most 
exhaustive  discussions,  both  of  the  power  of  the  legislatures, 
by  special  acts,  to  authorize  the  sale  of  the  propert}'  of  per- 
sons incapable  of  acting  for  themselves,  and  of  the  nature 
and  effect  of  such  sales  when  conducted  under  the  super- 
vision of  judicial  authority.^  The  power  which  is  competent 
to  change  trustees  and  provide  for  the  sale  of  propert}^  in 
which  infants  are  interested,  can  deal  with  like  efficiency 
with  property  given  for  the  purposes  of  charity  ;'^  or  which 
is  vested  in  trustees,  or  other  persons,  for  the  benefit  of 
persons  not  in  esse.'^ 

In  the  case  of  Lincoln  v.  Alexander,^  the  defendants 
sought  to  maintain  their  right  to  the  possession  of  real 
property  which  had  been  distributed  to  plaintiffs  by  the 
probate  court,  by  })roving  a  sale  to  them  by  the  plaintiffs 
mother,  acting  under  the  authority  of  a  special  statute  di- 
recting her  to  make  such  sale,  and  to  retain  and  use  the 
proceeds  for  the  maintenance  of  plaintiffs  who  were  then 
minors.  It  appeared  that,  prior  to  the  enactment  of  such 
statute,  the  stepfather  of  the  minors  had  been  appointed 
their  sfuardian,  and  had  assumed  the  management  and  taken 
possession  of  their  estates.  The  plaintiffs  recovered  chiefly, 
we  presume,  on  the  ground  that  while  there  is  a  guardian 
fully  competent  to  act,  the  legislature  cannot,  b}^  special 
statute,  devest  him  of  his  powers,  or  some  portion  thereof, 
and  confer  them   on  some  other  person,  though  there  are 

'Clarke  v.  Van  Siirlay,  1.5  Wend.  436;  Sinclair  v.  .Jackson,  S  Cow. 
.")43;  Cochran  v.  Van  Siulay,  20  Wend.  365,  32  Am.  Dec.  570;  William- 
son V.  Berry,  8  How.  (U.  S.)  41»5;  Towle  v.  Forney,  14  X.  Y.  423;  Wil- 
liamson V.  I.  P.  Congregation,  8  How.  (U.  S.)  565;  Siiydam  v.  William- 
son, 24  How.  (U.  .s.)  427;  Williamson  v.  Ball,  8  How.  fU.  S.)  .o66; 
Williamson  v.  Siiydam,  6  Wall.  723. 

-'Matter  of  Trustees  X.  Y.  P.  E.  Pub.  School,  31  X.  Y.5!)2;  Van 
Hoone.  Petitioner,  18  R.  I.  389. 

•  Matter  of  Bull,  45  Barb.  334;  Leggett  v.  Hunter,  Hi  X.  Y.  115. 

*  .52  Cal.  485,  28  Am.  Rep.  639. 

(18)    '  273 


§    08  VOID    JUDICIAL    SALES. 

intimations  in  the  opinion  that  the  sale  of  the  property  of 
minors  cannot  be  authorized,  in  the  absence  of  special  cir- 
emnstanccs,  not  here  shown  to  exist.  The  court  said:.  "In 
Brenham  v.  Davidson^  the  statute,  which  was  under  review 
in  that  case,  conferred  the  poAver  of  sale  on  the  guardian  of 
the  minor,  and  the  sale  was  to  be  approved  by  the  probate 
court.  The  proceeds  of  the  sale  were  to  be  reinvested  for 
the  benefit  of  the  minor;  and,  moreover,  no  sale  was  to  be 
made  unless  the  mother  of  the  minor,  who  held  an  undivided 
interest  in  the  property,  united  in  the  sale  and  conveyance. 
Under  these  circumstances,  we  held  that  the  case  was  one 
not  provided  for  by  the  general  law  regulating  the  sale  of 
the  estates  of  minors,  and  that  in  passing  the  statute  the 
legislature  did  not  attempt  to  exercise  judicial  powers;  but 
that,  as  par'ens  pairice,  it  has  the  power  by  special  act,  in  a 
case  not  provided  for  by  the  general  law,  to  authorize  the 
real  estate  of  the  minor  to  be  converted  into  money  by  the 
guardian,  if  the  probate  court  approves  the  sale.  But,  in 
the  case  at  bar,  the  minors  had  a  duly  qualified  and  acting 
statutory  guardian  at  the  time  of  the  passage  of  the  special 
act,  and  the  general  law  provided  an  appropriate  method  by 
which  the  probate  court  could  order  a  sale  of  the  real  estate 
of  the  minors  by  the  guardian,  if  a  sale  was  necessary  for 
their  education  and  support.  The  special  act  conferred  the 
power  of  sale,  not  upon  the  guardian,  but  upon  the  mother 
of  the  minors,  Avho  was  not  their  guardian,  and  had  no  in- 
terest in  the  property.  Nor  were  any  conditions  imposed 
upon  her,  except  that  she  should  first  execute  a  bond,  to  be 
approved  by  the  probate  judge,  conditioned  that  the  pro- 
ceeds of  the  sale  should  be  appropriated  to  the  support  and 
educations  of  the  minors;  and  that  the  sale  should  not  be 
valid  unless  confirmed  by  the  probate  court  previous  to  the 
execution  of  the  deed.  In  treating  of  the  rights  and  pow- 
ers of  statutory  guardians  of  the  estate  of  minors,  Mr. 
Schouler,  in  his  treatise  on  Domestic  Relations  (p.  471),. 
1  51  Cal.  352. 

274 


VOID    JUDICIAL    SALES.  §    G8 

says:  'The  recognized  principle  is,  that  such  guardians 
have  an  authority  coupled  with  an  interest,  not  a  bare  au- 
thority;' and  such  we  understand  to  be  the  well  settled 
rule.  The  statute  under  consideration  attempts  to  take 
the  estate  of  the  minors  out  of  the  hands  of  their  guardian, 
and  to  withdraw  it  from  the  control  of  the  probate  court, 
which,  under  the  general  law,  had  ample  authority  to  order 
it  to  be  sold,  and  the  proceeds  to  be  applied  to  the  support 
and  education  of  the  minors.  It  wholly  ignores  the  rights 
and  powers  of  the  guardian,  who  had  an  authority  coupled 
with  an  i)ilerest;  withdraws  the  estate  from  the  jurisdiction 
and  control  of  the  probate  court,  which  that  court  might 
rightfully  exercise  under  the  general  law:  and  attempts  to 
substitute  another  person  for  the  guardian,  with  authority 
to  dispose  of  the  estate  absolutely,  on  no  other  conditions 
than  those  already  mentioned.  i*^o  adjudicated  case  has 
been  called  to  our  attention,  in  which  the  exercise  of  such  a 
power  by  the  legislature  has  been  upheld.  In  his  work  on 
Constitutional  Limitations,  at  page  98,  Judge  Cooley,  in. 
discussing  legislation  of  this  character,  says:  'The  rule 
upon  this  subject,  as  we  deduce  it  from  the  authorities, 
seems  to  be  this:  If  the  party  standing  in  the  position  of 
trustee,  applies  for  permission  to  make  the  sale,  for  a  pur- 
pose apparently  for  the  interest  of  the  cestui  que  trust,  and 
there  are  no  adverse  interests  to  be  considered  and  adjudi- 
cated, the  case  is  not  one  which  requires  judicial  action ;  but 
it  is  optional  with  the  legislature  to  grant  the  writ  by  stat- 
ute, or  to  refer  the  case  to  the  courts  for  consideration, 
according  as  the  one  course  or  the  other,  on  considerations 
of  policy,  may  seem  desirable.'  But,  in  tiie  present  case, 
it  does  not  api)earthat  the  application  was  nuide  by  a  party 
'standing  in  the  position  of  trustee,'  and  there  were  'ad- 
verse interests  to  be  considered  and  adjudicated,'  to-wit: 
those  of  the  guardian.  Upon  the  face  of  the  act  there  is 
nothing  to  show  that  the  legislature  was  informed  that  a 
general  guardian  of  the  estates  of  these  infants  had  actually 

27o 


*;     (;<)  VOID    JUDICIAL    y.VLES, 

bfoii  !q)i)()intod.  It  is  fairly  to  be  presumed  that  they  were 
jonorant  of  that  fact.  At  all  events,  in  view  of  the  facts 
now  found  l)y  the  court  below,  the  act  cannot  be  permitted 
to  operate,  since,  under  the  circumstances,  it  would  be  judi- 
cial and  not  legislative  in  its  character,  and  for  that  reason 
unconstitutional." 

§  69.  Of  Special  Acts  Aiitlioriziiig  the  Sale  of  Lands 
to  Pay  Debts. — As  the  estate  of  an  ancestor  descends  to  his 
heirs,  subject  to  the  right  of  the  creditors  of  the  former  to 
compel  such  estate  to  contribute  to  the  payment  of  their 
claims,  a  special  act  to  authorize  the  sale  of  property  for  the 
pavment  of  such  claims  seems  to  be  one  of  the  most  defensi- 
ble acts  of  special  legislation  ;  and  so  it  is,  if  the  validity  and 
existence  of  the  claims  be  conceded.  But  special  acts  to 
raise  funds  for  the  payment  of  debts  have  been  more  per- 
sistently and  plausibly  assailed  than  acts  for  any  other  i>ur- 
])Ose  short  of  ostensible  confiscation.  If  such  an  act  is  so 
expressed  as  to  preclude  the  parties  in  interest  from  dis- 
puting the  validity  of  the  debts,  it  is  unquestionably  void, 
because  it  is  a  usurpation  of  judicial  authority.  In  1827, 
the  legislature  of  Illinois,  by  a  special  act,  authorized  John 
Lane  to  sell  so  much  of  the  lands  of  the  late  Christopher 
Robinson,  deceased,  as  should  prove  sufficient  to  raise  the 
sum  of  $1,008.87,  and  interest  and  cost  of  sale.  The  pro- 
ceeds of  the  sale  were  to  be  applied  to  the  extinguishment 
of  the  claims  of  said  Lane  and  one  John  Brown  for  moneys 
advanced  and  liabilities  incurred  on  account  of  Robinson's 
estate.  This  act  was  held  to  be  clearly  beyond  the  author- 
ity of  the  legislature,  because  the  existence  of  the  indebted- 
ness from  Robinson's  estate  to  Brown  and  Lane,  and  the 
consequent  right  of  Brown  and  Lane  to  satisfaction  out  of 
the  proceeds  of  the  estate,  could  only  be  ascertained  as  the 
result  of  a  judicial  investigation,  which  the  legislature  was 
incompetent  to  conduct.  The  act  was  also  thought  to  con- 
travene the  constitutional  provision,  that  "no  freeman  shall 
l)e  disseized  of  his  freehold,    but  by  the  judgment  of  his 

270 


AOID    JUDICIAL    SALES.  §     ()0 

peers,  or  the  hnv  of  the  hiiid.'"^  The  sui:)reuie  eouit  of 
Illinois  has  now  taken  a  position  far  in  advance  of  that  as- 
sumed in  the  case  just  cited,  and  will  not  tolerate  any  special 
legislation  authorizing  the  conveyance  of  real  estate  to  pay 
debts,  unless  such  debts  have  first  been  judicially  established . 
In  1823,  the  legislature  of  that  State  authorized  John  Rice 
Jones,  administrator  of  Thomas  Brady,  deceased,  to  sell 
and  convey  lands,  the  i)roceeds  to  be  assets  in  the  hands  of 
the  administrator,  to  be  appropriated  to  the  payment  of  the 
debts  of  the  deceased,  and  the  balance,  if  any,  to  be  dis- 
tributed among  his  children.  Of  this  act,  and  a  sale  made 
by  its  authority,  the  court  said:  "When  the  act  in  ques- 
tion was  passed,  and  when  the  land  was  sold,  the  title  was 
in  the  heirs  of  Brady,  subject  to  be  devested,  if  necessary, 
for  the  payment  of  his  debts.  But  the  legislature  had  no 
more  right  or  power  to  assume  that  he  died  owing  debts, 
and,  on  that  assumption,  to  authorize  his  administrator  to 
sell  lands  vested  in  his  heirs  for  the  purpose  of  holding  the 
proceeds  as  assets,  without  any  judicial  inquiry  as  to  the 
existence  of  such  debts  before  executing  the  power,  than  it 
would  have  had,  in  his  lifetime,  the  right  or  power  to 
authorize  the  sheriff  of  the  county  where  he  lived  to  sell  his 
land,  and  hold  the  proceeds  for  the  payment  of  whatever 
debts  he  might  owe."-  The  conclusion  here  announced  is 
one  which,  ui)on  principle,  meets  our  full  concurrence.  But 
we  understand  the  decided  preponderance  of  the  authorities 
to  be  in  favor  of  sustaining  special  acts  authorizing  sales 
for  the  i)ayment  of  the  debts  of  the  deceased  owner  of  i)r(jp- 
erty,  even  in  advance  of  the  judicial  ascertainment  of  such 
debts,  [)rovided  the  act  leaves  the  existence  of  such  dcbl- 
open  to  iiKiuiry.'^ 

'  Lanf  V.  Donnan,  3  Scim.  238,  3G  Am.  Deo.  oiii,  followed  in  Dubois 
V.  McLean,  4  .Mcl.e;in,  -ISii. 

-  Kozier  V.  I'a<;an.  I'i  III.  41).');  Davenpoit  v.  Young.  IG  111.  rt4s,  (>;}  .\m. 
Deo.  320. 

■  Walkins  v.  Ilolman,  ]<>  I'et.  25;  Davison  v.  .lohonnot,  7  Met.  ;{S8,  41 
Am.  Dec.  448:  Sbehan'allelis  v.  Uarnetr.s  Ileir.-^.  (5  Mon.  593;  llulman's 


§     71  VOID    JUDICIAL    SALES. 

§  70.  Special  Act  Need  not  Require  a  ISoiid  for  the 
Apulicatioii  of  the  Proceeds. — Special  acts  authorizing 
the  sale  by  one  person  of  the  property  of  another,  generally 
contain  precautionary  provisions  tending  to  secure  the  hon- 
est exercise  of  the  authority  conferred.  Bonds  are  usually 
exacted,  conditioned  for  the  proper  appropriation  of  the 
proceeds  of  the  sale.  By  this  means,  the  interests  of  heirs 
and  creditors  are  exempted  from  needless  peril.  These 
precautions  seem  not  to  be  essential  to  the  validity  of  the 
act.  The  question  is  one  of  power.  The  existence  of  the 
power  being  established,  the  propriety  of  its  exercise  rests 
solely  w^ith  the  legislature.  If,  through  misplaced  confi- 
dence or  reckless  inattention  to  the  duties  of  its  trust,  the 
legislature  confers  the  power  of  sale  on  a  person  who,  being 
required  to  furnish  no  securit}^  squanders  the  proceeds  of 
the  sale,  and  thus  defrauds  the  heirs  of  their  inheritance 
and  the  creditors  of  their  means  of  enforcing  payment,  the 
sale  is  not,  on  that  account,  invalid.^ 

§    71 .     Acts  for  the  Sale  of  L.ands  of  Co-Tenants. — The 

power  of  the  legislature  to  authorize,  by  general  laws,  the 
sale  of  the  lands  of  co-tenants  for  the  purposes  of  partition, 
where  the  necessity  of  the  sale  is  judicially  determined,  is 
unquestionable,^  So  there  is  little  or  no  doubt  of  the  con- 
stitutionality of  a  special  act  authorizing  a  co-tenant  to 
petition  a  court  of  competent  jurisdiction  for  the  sale  of  the 
lands  of  a  co-tenancy,  and  also  authorizing  the  court,  upon 
being  satisfied  that  a  division  of  the  property  among  the 
co-tenants  is  extremely  difficult,  if  not  impracticable,  to 
order  a  sale  of  the  premises  and  a  division  of  the  proceeds 


Heirs  v.  Bank  of  Norfolk,  12  Ala.  369 ;  Kibby  v.  Chitwood,  4  Mon.  91, 
16  Am.  Dec.  143;  Williamson  v.  Williamson,  3  S.  &  M.  715,  745,  41  Am. 
Dec.  636;  Cliisky  v.  Burns.  120  Mo.  ,567. 

•Gannett  v.  Leonard,  47  Mo,   205;   Thomas   v,  Piillis,  56  Mo.  218 
Rider  v,  Reagan,  114  Cal,  667. 

2  Freeman  on  Co-Tenancy  and  Partition,  sec.  .540. 

278 


VOID    JUDICIAL    SALES.  §    71 

among  the  parties  in  interest.^  Such  an  act  leaves  the  ne- 
cessity and  expediency  of  the  sale  to  be  determined  by  the 
judiciary.  Special  acts  which  do  this  are  free  from  consti- 
tutional objections,  except  in  those  States  whose  constitu- 
tions forbid  special  legislation.'^  In  Pennsylvania,  an  act 
was  sustained  which  empowered  one  of  several  heirs,  without 
the  aid  of  any  judicial  proceedings,  to  sell  the  lands  de- 
scended from  their  common  ancestor,  and  divide  the  pro- 
ceeds among  the  co-heirs;^  and  a  decision  similar  in  spirit 
has  been  made  in  Massachusetts.^ 

The  courts  of  the  State  of  Connecticut  seem  to  have  gone 
further  than  any  other  in  sustaining  the  authority  of  the 
legislature  to  devest  persons  of  property  by  sales  made 
against  their  will,  and  without  any  ascertained  or  suggested 
necessity  therefor.  Thus,  where  a  devise  was  made  to  H, 
for  life,  and  upon  her  death  to  other  persons,  in  certain 
contingencies,  H,  while  in  possession  as  tenant  for  life, 
petitioned  the  general  assembly,  praying  for  a  sale  of  the 
})roperty  and  showing  that,  while  the  property  was  worth 
about  $4,000,  it  produced  a  net  income  of  only  $100  a  year. 
The  general  assembly,  by  resolution,  directed  the  sale  of  the 
lands  by  certain  trustees,  and  the  investment  by  them  of 
the  proceeds  for  the  benefit  of  the  parties  according  to  their 
re=!pective  interests.  The  trustees  were  about  to  proceed 
under  the  act  when  the  contingent  remainder-men  sought 
to  prevent  their  so  doing  by  suing  out  an  injunction.  The 
injunction  was  denied  by  the  supreme  judicial  court  which, 
in  its  opinion,  said  :  "It  is  said  by  the  petitioners  that  this 
resolution  dei)rive«  thein  of  their  interest  in  the  property 
ao-ainst  their  will,  and  is  therefore  void,  not  only  asopposed 
to  natural  justice,  but  as  in  conflict  with  the  provisions  of 
the  constitution  of  this  State.     It  was  held  by  this  court  in 

1  Edwards  v.  Popes,  3  Scam.  405;  Mctcalf  v.  lloopingardner,  4.'5  Iowa, 

2  Florenlino  v.  Ilarton,  2  Wall.  '210. 

5  FiiUerton  v.  McArthur,  1  Grant's  Cas.  232. 
*  Soheir  v.  Mass.  flen.  Hospital,  3  Ciish.  4S3. 

21  d 


§     71  VOID    .lUDlCIAL    SALES. 

the  case  of  IvicliMrdson  v.  Monson,'  that  the  statute  which 
authorizes  the  sale  of  hinds  held  in  joint  tenancy,  tenancy 
in  comnion,  or  coparcenary,  whenever  partition  cannot  con- 
veniently be  nuule  in  any  other  way,  is  constitutional.  That 
case  was  ably  discussed  by  counsel,  Avho  offered  the  same 
arguments  against  the  constitutionality  of  the  statute,  whi(;h 
have  been  urged  upon  our  consideration  against  the  validity 
of  this  resolution.  It  is  difficult  to  see  any  distinction  in 
principle  between  the  two  cases.  Wiien  a  sale  is  made  of 
real  estate  held  in  joint  tenancy,  the  tenant  opposed  to  the 
sale  is  as  much  deprived  of  his  estate  by  the  change  which 
is  made  as  these  petitioners  are  of  their  property,  by  the 
change  authorized  by  this  resolution.  In  either  case,  the 
parties  are  not  subjected  to  a  loss  of  their  property.  It  is 
simpl}-  changed  from  one  kind  of  estate  to  another.  In  the 
case  of  Sohier  V.  Massachusetts  General  Hospital, ^  the  court 
say  in  a  case  like  the  present :  "The  legislature  authorizes 
the  sale,  taking  care  that  the  proceeds  shall  go  to  the 
trustees  for  the  use  and  benefit  of  those  having  the  life  es- 
tate, and  of  those  having  the  remainder,  as  they  are  entitled 
under  the  will.  This  is  depriving  no  one  of  his  property, 
but  is  merely  changing  real  into  personal  estate,  for  the 
benefit  of  all  parties  in  interest.  This  part  of  the  resolve, 
therefore,  is  within  the  scope  of  the  powers  exercised  from 
the  earliest  times,  and  repeatedly  adjudged  to  be  rightfully 
exercised  by  the  legislature.  In  the  case  of  Rice  v.  Park- 
man,"  it  was  held  that  the  leo;islature  mio;ht  ri^htfullv 
authorize  a  tenant  for  life  to  sell  the  whole  estate,  thus 
converting  real  into  personal  property,  provision  being  made 
for  securing  the  interests  of  those  in  remainder.  We  think 
the  decision  in  the  case  of  Richardson  v.  ^lonson,  which  Ave 
have  referred  to,  must  be  regarded  as  decisive  of  this  case. 
We  think  the  resolution  in  question  constitutional,  and  not 

1  23  Conn.  94. 
-3  Cush.  49(5. 
••  16  Mass.  32H. 

280 


VOID    JUDICIAL    SALES.  §     72 

opposed  to  natural  justice,  and  we  therefore  advise  the 
.superior  court  to  dismiss  the  petition."^  It  will  be  seen 
from  the  foregoing  quotation  that  the  court  relied  very  con- 
fidently on  prior  decisions  made  by  the  courts  of  Massachu- 
setts. But  the  statutes  sustained  in  Massachusetts  authorized 
the  sale  of  the  estates  of  minor  remainder-men  who  were 
incompetent  to  act  for  themselves,  and,  in  this  respect,  we 
think  a  very  substantial  difference  exists  between  those  cases 
and  that  in  Connecticut  where  there  was  no  suggestion  that 
the  contingent  remainder-men  were  under  any  disability  or 
not  fully  competent  to  act  for  themselves, 

§  72.  Decisions  Limiting  tbe  Power  of  LejAislatiires  to 
Pass  Special  Liaws  for  the  Sale  of  Property. — We  shall 
now  call  attention  to  decisions  which,  though  pronounced 
by  courts  which  concede  the  power  of  a  legislature  to  pass 
special  acts  authorizing  the  sale  of  property,  prescribe 
limits  beyond  which  the  power  is  not  recognized.  In  1831, 
Thomas  Poole  devised  his  real  estate  to  his  executors  in 
trust:  1st,  to  permit  his  daughter,  Eliza,  to  occupy  the 
same,  and  take  the  rents  and  profits  thereof  during  her 
natural  life;  2d,  upon  her  death,  the  lands  were  to  vest  in 
her  lawful  issue,  and,  in  default  of  such  issue,  then  in  all 
the  testator's  surviving  grandchildren.  By  special  acts, 
passed  in  1837  and  1849,  the  executors  were  authorized  to 
sell  and  convey  the  real  estate,  and,  with  the  proceed-^,  to 
pay  all  charges  and  assessments  against  the  lands,  and  also 
the  costs  of  sales  and  commissions.  The  surplus  Avas  then 
to  be  disposed  of  in  the  manner  specified  in  the  will  for  the 
disposition  of  the  real  estate.  A  sale  was  made  under  these 
acts.  A  case  wa:»  then  agreed  upon  and  submitted,  for  tlio 
purpose  of  ascertaining  whether  the  i)urchaser  could  accjuiro 
a  valid  title.  It  appeared  that  the  daughter,  Eliza,  was 
still  living,  and  that  she  had  two  children.  The  act  was 
held  unconstitutional,  upon  grounds  which  are  not  stiilcd  in 

'  Linslpy  v.  Ilubhiird.  U  Conn.  10'),  20  Am.  Hep.  4:^1. 

281 


§     72  VOID    JUDICIAL    SALES. 

the  opinion  of  the  court,  with  sufficient  clearness  to  enable 
us  to  feel  confident  that  we  correctly  understand  them.  We 
judge,  however,  that  the  reasoning  controlling  the  decision 
of  the  court  was  substantially  this:  No  necessity  existed 
for  the  sale;  there  were  no  charges,  liens  or  assessments 
against  the  property;  and  no  infancy  or  other  necessity 
shown  as  to  the  parties  interested  under  the  will ;  and  that, 
under  these  circumstances,  the  acts  authorized  the  taking 
of  property  from  one  person  and  transferrmg  it  to  another 
without  any  reason.^  Whether  the  children  of  Eliza,  "who 
had  a  vested  remainder  in  fee,  in  the  premises  in  question, 
as  tenants  in  common,  subject  to  open  and  let  in  after-born 
issue  of  their  mother,  as  tenants  in  common  with  them,  and 
liable,  however,  to  be  devested  by  their  deaths  during  the 
lifetime  of  their  mother,"  were  minors  or  adults,  the 
report  of  the  case  very  singularly  omits  to  mention.  The 
following  reasoning  of  the  court,  in  this  case,  tends  very 
strongly  toward  the  overflow  of  all  legislation  authorizing 
the  transfer  of  the  property  of  one  person  by  another, 
without  any  imperative  necessity,  and  without  the  assent  of 
the  owner:  "If  the  power  exists  to  take  the  property  of 
one,  without  his  consent,  and  transfer  it  to  another,  it  may 
as  well  be  exercised  w'ithout  making  any  compensation  as 
with  it;  for  there  is  no  provision  in  the  constitution  that 
just  compensation  shall  be  made  to  the  owner  when  his 
property  shall  be  taken  for  private  use.  The  power  of 
making  contracts  for  the  sale  and  disposition  of  private 
property  for  individual  owners  has  not  been  delegated  to 
the  legishiture  or  to  others,  through  or  by  any  agency  con- 
ferred on  them  for  such  purpose  by  the  legislature ;  and  if 
the  title  of  A  to  property  can,  without  his  fault  or  consent, 
be  transferred  to  B,  it  may  as  well  be  effected  without  as 
Avith  consideration."'^ 

1  Powers  V.  Bergen,  6  N.  Y.  358,      See  Leggett  v.  Hunter,  19  N,  Y. 
445. 

2  Poweis  V.  Bergen,  G  X.  Y.  .367. 

282 


VOID    JUDICIAL    SALES.  §    72 

■  In  California,  it  is  settled  that  the  legislature  cannot 
autborize  an  administrator  to  sell,  at  his  discretion,  the 
lands  of  his  intestate,  as  in  his  judgment  will  best  promote 
the  interest  of  those  entitled  to  the  estate.  In  this  case, 
the  heirs  of  the  deceased  consisted  of  his  widow  and  minor 
<;hildren.  "We  make  the  following  quotations  from  the 
opinion  of  the  court:  "  It  is  undoubtedly  within  the  scope 
of  legishitive  authority  to  direct  that  the  debts  be  paid  from 
the  realty  instead  of  the  personal  property ;  or,  as  is  done 
in  some  States,  that  the  heir  need  not  be  made  a  party  to 
the  proceeding  to  obtain  a  sale  of  the  real  estate,  or  that 
the  administrator  may  sell  without  any  order  of  the  court 
whatever.  But  all  these  acts  must  be  for  the  satisfaction 
of  these  liens,  which  are  held  to  be  paramount  to  the  claim 
of  the  heirs  or  devisees. 

"  Laws  which  prescribe  the  manner  in  which  these  para- 
mount claims  shall  be  satisfied,  are  held  to  be  entirely 
remedial;  and  it  is  upon  this  ground  that  the  courts  have 
uphehl  acts  authorizing  the  administrator  to  sell  at  private 
sale,  or  in  some  mode  not  provided  in  the  general  law,  the 
land  of  a  deceased  person.  Such  acts  have  been  uniformly 
held  valid  where  it  appeared  to  be  in  execution  of  these 
liens,  and  the  act  was  not  liable  to  the  objection  that,  in 
passing  it,  the  legislature  usurped  judicial  functions;  as,  for 
instance,  in  directing  a  sale  to  pay  a  particular  debt, 
thereby  ascertaining  the  existence  of  a  debt  bjMegislative 
enactment. 

"  In  all  the  cases  to  which  our  attention  has  been  called 
by  the  plaintiff,  the  decision  expressly  was  i)ut  upon  this 
ground.  The  duty  of  an  administrator  is  to  take  charge  of 
the  estate  for  the  purpose  of  settling  the  claims,  and  when 
they  have  been  satisfied  it  is  his  duty  to  pass  it  over  to  the 
heir,  whose  absolute  propertv  it  then  becomes.  To  allow 
the  administrator  to  sell,  to  i)romote  the  interest  of  those 
entitled  to  tiie  estate,  would  be  to  i)ass  beyond  the  proper 
functions    of    an    a    dministrator,    and   constitute    him  the 

283 


§     72  VOID    .lUDIClAL    SALES. 

forced  ao^ent  of  the  livino-  for  the  nuinaocnient  of  their 
estates. 

"In  this  case  it  does  not  appear,  from  the  proceedings  in 
the  probate  court  upon  the  sale,  that  there  were  any  debts 
of  the  deceased  at  the  time  of  the  sale,  nor  does  it  appear 
that  the  sale  was  to  raise  money  for  the  support  of  the 
family,  or  to  pay  the  expense  of  administration.  The 
special  act  does  not  purport  to  authorize  a  sale  for  the  pay- 
ment of  the  debts,  allowances  to  the  family,  or  expenses  of 
administration.  On  the  contrary,  it  expressly  authorizes  a 
sale,  for  the  purpose  of  speculation  in  the  interest  of  the 
owners  of  the  property — that  is,  the  heirs.  It  provides 
that  the  administrator  may  sell,  at  his  discretion,  '  the  whole 
or  any  part  of  the  real  estate,  or  any  right,  title  or  interest 
therein  claimed,  held  or  owned  by  the  said  Charles  White, 
at  the  time  of  his  death,  as  in  the  judgment  of  the  adminis- 
trator will  best  promote  the  interest  of  those  entitled  to  the 
estate."  The  probate  judge  may  confirm  or  set  aside  the 
sale,  as  he  may  deem  just  and  proper,  and  for  the  best  in- 
terests of  the  estate. 

"Upon  the  death  of  the  ancestor  the  heir  becomes  vested 
at  once  with  the  full  property,  subject  to  the  liens  we  have 
mentioned;  and,  subject  to  these  liens,  and  the  temporary 
right  of  possession  of  the  administrator,  he  may  at  once 
sell  and  dispose  of  the  property,  and  has  the  same  right  to 
judge  for  himself  of  the  relative  advantages  of  selling  or 
holding  that  any  other  owner  has.  His  estate  is  indefeasible, 
except  in  satisfaction  of  these  prior  liens,  and  the  legislature 
has  no  more  rio:ht  to  order  a  sale  of  his  vested  interest  in 
his  inheritance,  because  it  will  be,  in  the  estimation  of  the 
administrator  and  the  probate  judge,  for  his  advantage, 
than  it  has  to  direct  the  sale  of  the  property  of  any  other 
person  acquired  in  any  other  way.  *  *  *  It  is  not  con- 
tended that  the  legislature  has  the  power  to  direct  the  sale 
and  conveyance  of  private  property  for  other  than  public 
uses.      This  question  was  fully  considered,  however,  by  us 

284 


VOID    .JUDICIAL    SALES.  §     72 

in  Sherman  v,  Biiiek/  and  decided  in  the  negative,  and  that 
conclusion  is  fully  sustained  by  the  numerous  authorities 
cited  by  the  defendant.'' - 

We  are  unable  to  concur  with  the  supreme  court  of  Cal- 
ifornia in  thfc  opinion  foreshadowed  in  Brenham  v.  Story, 
and  adopted  in  Brenham  v.  Davidson,'^  that  the  power  of 
the  leofislature  to  confer  authority  on  guardians  is,  where 
the  persons  in  interest  are  not  sui  Jaris,  au}'  more  ample 
than  its  power  to  confer  like  authority  in  a  like  case  on  ad- 
ministrators. If  the  legislature  has  the  pow^rto  authorize 
sales,  we  cannot  conceive  that  it  is  limited  in  the  choice  of 
agents  to  execute  the  power.  It  is  true  that  the  duties  of 
administrators  and  guardians  are  somewhat  different  under 
tlie  general  laws  in  force  in  most  of  the  States.  But  when 
a  special  act  is  passed,  the  power  to  be  exercised  is  dele- 
gated and  prescribed  by  the  special  act,  and  not  by  the 
general  law.  The  power  of  the  agent  is  not,  therefore, 
limited  by  the  fact  that,  before  the  passage  of  the  act,  he 
was  an  administrator,  and,  as  such,  ha.d  no  authorit}',  under 
tlie  general  law,  to  nuike  a  sale  when,  in  his  discretion,  he 
thought  best.  Special  acts  authorizing  sales  are  maintain- 
able, if  at  all,  because,  in  the  language  of  Chancellor  AYal- 
worth  :  "It  is  within  the  power  of  the  legislature,  as  parens 
pah-ice,  to  prescribe  such  rules  and  regulation  s  as  it  may 
deem  proper  for  the  superintendence,  disposition  and  man- 
agement of  the  property  and  effects  of  infants,  lunatics  and 
other  persons  who  are  incapable  of  managing  their  own 
affairs,"*  If  the  persons  interested  in  an  estate  arc  thus 
incapable,  we  see  no  reason  why  the  power  of  disposing  of 
their  estate  may  not  be  delegated  to  an  administrator,  or 
even  to  a  stranger,  as  well  as  to  the  auardian.  The  two 
California  cases  last  cited  are,  therefore,  irreconcilable  in 

'  32  Cal.  241,  91  Am.  Dec.  577. 

2  Brenham  v.  Story,  39  Cal.  185. 

■i  Brenbaiii  v.  havid.son,  51  Cal.  3.")2. 

^  Cocbrun  v.  Nan  Siirlay,  20  Wend.  373,  32  Am.  Dec.  570. 


§     72  A'OID    JUDICIAL    SALES. 

principle,  and  one  or  the  other  ought  to  be  overruled;  for, 
in  each  case,  the  legislature  authorized  a  sale  to  be  made 
without  the  assent  of  the  owner  of  the  property,  and  in  the 
absence  of  any  disclosed  necessity  therefor.  In  each  case 
the  person  designated  by  the  legislature  was  invested  with 
a  discretion  to  make  the  sale  as  he  might  deem  best,  except 
that,  in  the  one  case,  he  was  instructed  to  promote  the  in- 
terest of  those  interested  in  the  estate,  Avhile  in  the  other, 
no  such  instruction  was  given.  And  yet  the  latter  was  up- 
held and  the  former  suffered  to  fall,  and  this  upon  the 
ground  that  in  the  one  case  the  person  selected  by  the  special 
act  was  a  guardian,  and  in  the  other  he  was  an  administra- 
tor.^ In  the  case  of  a  guardian's  sale,  the  persons  whose 
property  is  to  be  sold  are  within  the  reason  of  the  rule,  as 
stated  by  Chancellor  Walworth.  In  the  case  of  a  sale  by 
an  administrator,  the  heirs  may  or  may  not  be  within  the 
reason  of  the  rule  as  thus  stated.  If  all  the  owners  of  the 
property  are  not  sui  juris,  and  are,  therefore,  within  the 
reason  of  the  rule,  then  the  sale  should  be  sustained,  whether 
the  agent  selected  by  the  legislature  be  an  administrator  or 
a  guardian,  or  have  no  other  official  capacity  than  that  given 
him  by  the  act.  If,  on  the  other  hand,  any  of  the  owners 
be  sui  jurisy  the  sale  must  fall,  if  made  against  his  will, 
whether  the  agent  appointed  to  make  it  is  a  guardian  or  an 
administrator.  Persons  regarded  in  law  as  capable  of  con- 
ducting their  own  affairs  are  entitled  to  act  for  themselves. 
They  are  the  sole  judges  of  the  advisability  of  selling  their 
property.  The  legislature  cannot,  against  Uieir  will,  em- 
power any  other  person  to  sell  and  convey  their  intercuts, 
even  though  infants,  or  persons  not  in  esse  have  estates  and 
interests  in  the  same  parcels  of  property. "-^ 

When  property  of  an  ancestor  has  descended  to  his  heirs, 
or  when,  by  any    means,    property  has  become  vested  in 

1  See  Brenham  v.  Davidson,  51  Cal.  352;  Brenham  v.  Story,  39  Cal, 
185. 

2  Brevoort  v.  Grace,  53  N.  Y.  245;  Shoenberger  v.  School  Directors, 
32  Pa.  St.  34. 

286 


VOID    JUDICIAL    SALES.  §     ^- 

adults  who  are  not  subject  to  any  disability  and  -who  must, 
therefore,  be  regarded  as  capable  of  managing  their  own 
affairs,  it  is  now,  we  think,  settled  almost  beyond  dispute 
that  the  legislature  cannot,  b}-  any  subsequent  enactment, 
whether  general  or  special,  in  effect  take  from  such  persons 
the  management  of  their  property  by  authorizing  its  sale 
for  the  purpose  of  reinyestment,  or  because  either  in  the 
opinion  of  the  legislature  or  of  some  court  to  which  the 
question  may  be  submitted,  such  sale  may  appear  for  the 
best  interests  of  those  concerned.  The  Code  of  Civil  Pre- 
cedure  of  California,  as  amended  in  1893,  purported  to 
authorize  the  sale  of  the  real  property  of  a  decedent  "on 
the  ground  that  it  is  for  the  advantage,  benefit  or  best 
interest  of  the  estate  and  those  interested  therein."  The 
court  held  that  this  statute  was  unconstitutional  if  souoht 
to  be  applied  to  heirs  whose  title  had  vested  prior  to  the 
enactment,  saying,  that  upon  the  death  of  their  ancestor 
their  title  became  vested  at  once,  subject  to  such  liens  as 
existed  thereon  and  the  temporary  right  of  possession  on 
the  part  of  the  administrator,  and  the  heirs  had  the  same 
right  to  judge  themselves  of  the  relative  adyantago  of  sell- 
ing or  holding  their  property  than  any  other  owner  had; 
that  their  estate  was  indefeasible  except  in  satisfaction  of 
prior  liens,  and  that  the  legislature  had  no  more  right  to 
order  a  sale  of  their  interests,  because  it  would  be  in  the 
estimation  of  the  administrator  and  the  probate  judge  for 
their  advantage,  that  it  had  to  direct  the  sale  of  the  prop- 
erty of  any  other  i)erson  acquired  in  any  other  way.^  A 
statute  of  Wisconsin  authorized  an  executor  to  sell  all  the 
property  of  his  decedent  situate  Avithin  the  State,  and  there- 
upon to  execute  all  necessary  instruments  of  conveyance  or 
transfer  in  the  usual  form  with  or  without  the  usual  covenants 
of  warraat3\  There  were  no  recitals  in  the  act  showing  an}' 
reason  for  conferring  this  power  of  sale.  The  court  said: 
•'The  act  in  (juestion  is  nothing  more  or  less  than  an  arbi- 

>  Estate  of  Pucker,  V27)  Cal.  396,  73  Am.  St.  Rep.  58. 

287 


^     72  AOID    JUDICIAL    SALES. 

Irary  attempt  on  the  part  of  the  legislature  to  authorize  an 
individual,  who  does  not  appear  to  have  any  estate  or  right 
to  the  real  estate  in  question,  either  as  trustee  or  otherwise, 
to  sell  and  convey  the  same  to  such    persons  and  for  such 
price  as  he  may  deem  expedient ;   nor  does  it  attempt  to 
provide  that  he  shall  turn   over   the  proceeds  of  the  sale  to 
the  persons  holding  the  title  of  the  lands  sold.     The  fact 
that  the  legislature  calls  him  the  executor  of  the  last  will 
and  testament  of  Francis  B.  Webster  does  not  change  the 
nature  of  the  act.     His   being  executor  of  the  will  of  a  de- 
ceased person   does  not  prove  that  he   had  any  estate  or 
interest  in  the  real  property.of  the  deceased,  or  any  power 
to  sell  the  same."  ^     A  wife  died  intestate,  leaving  her  hus- 
band and  children   as  her  sole  heirs  at  law.     He  was  ap- 
pointed and  qualified  as  her  administrator,  and  as  such  paid 
all  claims  against  her  estate  in  due  course  of  law,  but  he 
thereafter  sold  her  real  property  under  a  special  statute  au- 
thorizing him  so  to  do.     The  court  said :      "Apparently,  the 
only  object  sought  to  be  attained  was  to  enable  an  adminis- 
trator to  convert  property  owned  jointly  by  himself  and  chil- 
dren, but  two  of  whom  were  under  disability,  into  money  for 
the  sole  purpose  of  distribution.  Special  statutes  authorizing 
a  guardian  to  sell  the  estate  for  the  maintenance  and  educa- 
tion of   minor  heirs,  or  the   payment  of  debts,  subject  to 
which  they  obtained  title  at  the  death  of  an  ancestor,  and 
with  which  the  property  is  still  burdened,  have  been  sus- 
tained for  the  reason  that  the  rights  of  creditors  are  para- 
mount, and  upon  the  theory  that  the  legislature  should, 
when  necessary,  protect  the  weak    and  promote  the  welfare 
of  persons  incapacitated  by  some  legal  disability  from  dis- 
posing of  their  own  estate.     No  necessity  appears  to  have 
existed  for  a  sale  of  the    premises,  and  obviously  the  legis- 
lative act  invades  the  functions  of  the  judiciary.     In  contra- 
vention of  the  federal   constitution,  and  the   organic  law 
then   in   force  in  this  jurisdiction,  tenants  in  common  and 

1  Culbertson  v.  Coleman,  47  Wis.  193. 

288 


VOID    jrDKIAL    8ALES.  §     72 

the  owners  of  private  property  were,  without  their  couseut, 
and  in  absence  of  notice  or  an  opportunity  to  be  heard, 
devested  of  their  estate  without  due  process  of  law,  and  the 
act  relied  upon  to  justifv  the  transaction  is  therefore  un- 
constitutional and  void."^  In  expressino-  its  views  upon 
this  subject,  the  supreme  court  of  Missouri  said:  "It  will 
be  readily  inferred  from  what  is  said  in  the  opinion  in  these 
cases  that  the  authority  by  the  legislature  can  go  no  further 
than  to  authorize  the  sale  of  the  land  of  such  persons  as  are 
under  such  disability  as  prevents  them  from  exercising  that 
right  in  their  own  names,  unless  it  be  for  the  satisfaction 
of  legal  charges  upon  the  land,  or  for  the  payment  of  debts 
subject  to  which  the  title  is  held."  ^  probably  no  case  can 
be  found  reported  which  upholds  a  sale,  made  under  au- 
thority of  an  act  of  legislature,  bjMvhich  the  person  author- 
ized conveyed,  without  his  consent,  the  land  of  another  who 
was  himself  capable  of  transacting  his  own  business,  except 
under  circumstances  above  stated.  On  the  contrary,  all 
the  decisions  which  speak  at  all  on  the  subject  assert  the 
contrary.  Such  a  sale  would  be  equivalent  to  depriving 
the  owner  of  his  property  without  due  process  of  law,  and 
would  be  violative  of  both  the  State  and  federal  constitu- 
tions.^ The  court  of  appeals  of  Kentucky  declared  uncon- 
stitutional section  491  of  the  Cjvil  Code  of  that  State,  in  so 
far  as  it  authorized  the  sale  upon  petition  of  a  life-tenant 
and  in  opposition  to  the  wishes  of  the  owner  in  fee 
when  he  was  not  laboring  under  anv  disability,  saying: 
"After  a  careful  consideration  and  full  investigation  we 
have  concluded  that  the  section  referred  to,  and  to  the 
extent  indicated,  is  unconstitutional.  It  operates  in  effect 
to  take  the  i)roperty  of  one  individual  and  transfer  it  to 
another,   when   )ieilher    is    under    such  disability  as  to  re- 

'  Johnson  v.  Branch.  9  H.  Dak.  lid,  02  Am.  .St.  Rep.  S.'»7. 

2  Cargile  v.   Fernald,   iVi   Mo.   ;^()4 :  Ilindriian   v.    I'iper,   50  Mo.  294; 
Wilkinson  v.  Leland,  2  Pet.  027;  Watkins  v.  llohnan,  IC  I'et.  25. 

'  Garnett  v.   Leonard,  47   Mo.   206;  Kneass'  Appeal,  31    Pa.  St.  91 ; 
Ilindrnan  v.  Piper,  50  Mo.  249;  Burns  v.  Cliiskcy,  120  Mo.  ."i(;7. 
(10)  2811 


§    72  VOID    JUDICIAL    SALES. 

quire  the  guardianship  of  the  courts.  Where  any  of  the 
citizens  arc  incapacitated  to  act  for  themselves,  it  becomes 
the  duty  of  the  State  to  protect  their  interests,  and  it  is 
upon  this  idea  and  for  this  reason  that  jurisdiction  has 
been  conferred  to  sell  and  reinvest  the  proceeds  of  property 
belonging  to  such  persons  when,  in  the  judgment  of  the 
court,  it  is  to  their  interest.  The  court  acts  and  consents 
for  them  because  they  cannot  act  or  consent  for  themselves. 
But  so  long  !as  the  citizen  is  under  no  legal  disability  to  act 
for  himself  in  the  management  of  his  property,  he  is  pro- 
tected by  the  constitution  from  interference  on  the  part  of 
the  State,  whether  that  interference  comes  directly  by  legis- 
lative act,  operating  immediately  upon  the  property,  or  in- 
termediately through  the  courts.  There  may  be  cases  of 
tenancy  in  common,  or  even  of  joint  tenancy,  where  the 
courts  can  be  authorized  to  sell  the  property  so  held,  and 
one  of  the  joint  tenants  oi*  tenants  in  common,  who  is  sui 
juris,  refuses,  without  reason,  to  sell.  But  even  in  that 
case  there  would  be  no  power  in  the  court  by  legislative 
enactment  to  reinvest  the  proceeds  of  the  property  of  the 
recalcitrant  tenxint.  Such  cases,  as  said  by  Chief  Justice 
Lewis,  in  Kneass'  Appeal,^  are  placed  on  the  ground  of  the 
'necessities  of  justice.'  In  all  such  cases,  where  sales  have 
been  sanctioned,  there  was  a  joint  ownership  in  fee,  and  a 
joint  right  of  possession,  conditions  not  existing  in  this 
case.  In  addition  to  these  cases,  it  has  been  held  that  when 
the  interest  is  not  vested,  but  contingent,  a  sale  might  be 
had  without  the  consent  of  the  contingent  remainder-man. 
In  the  case  under  consideration  the  party  seeking  to  have 
the  fee  disposed  of  against  the  will  of  the  owner  has  only  a 
qualified  or  limited  interest  that  may  be  terminated  at  any 
moment.  She  has  in  no  way  been  interferred  with  by  ap- 
pellants in  the  enjoyment  of  what  estate  she  has  in  the 
property ;  and  if  the  property  is  not  so  productive  to  her  by 
reason  of  the  burning  of  the  house,  it  is  her  misfortune 

V31  Pa.  St.  91. 

200 


VOID    JUDICIAL    SALES.  §    72 

Avhicli  operates  with  detriment  to  appellants  as  well  as  to 
appellee,  and  that  without  any  fault  of  appellants.  To 
hold  that  a  life  tenant,  Avhea  it  may  appear  to  be  to  his  or 
her  interest,  may  go  into  a  court  of  equity,  and  in  opposi- 
tion to  the  wish  of  the  remainder-man  have  the  fee  sold 
and  the  proceeds  reinvested,  would  operate  to  destroy  es- 
tates in  remainder.  It  will  not  do  to  say  that  the  court  first 
determines  that  it  will  be  to  the  interest  of  the  remainder- 
man before  a  sale  will  be  authorized.  The  court  has  no 
right  to  appoint  a  guardian  for  one  who  is  sui  juris,  nor  to 
consent  for  or  to  act  for  him.  So  long  a«  the  person  is  not 
disabled  to  manage  the  property,  his  or  her  judgment  must 
determine  the  question  as  to  whether  a  sale  would  be  to  his 
or  her  interest,  unless  in  the  case  of  tenancy  in  common  and 
joint  tenancy  heretofore  mentioned."  ^ 

The  fact  that  the  person, whose  estate  is  sought  to  be 
devested  by  a  sale  to  which  he  does  not  consent  acquired 
his  interest  prior  to  the  enactment  of  the  statute  asserted 
against  him  is  a  very  material  one.  Especially  is  this  true 
where  his  interest  is  that  of  an  heir,  and  the  statute  under 
which  it  was  sold  is  general  in  character,  applying  to  all 
persons  under  like  circumstances.  It  is  well  known  that 
the  right  of  succession  is  a  creature  of  the  statute,  and,  as 
it  may  by  statute  be  withheld  altogether,  it  may  also  be 
limited  and  made  subject  to  such  conditions  as  the  legisla- 
ture sees  fit  to  impose.  Hence,  a  statute  authorizing  a 
court  exercising  jurisdiction  over  the  estate  of  a  decedent 
to  order  the  sale  of  the  real  or  other  property  thereof  when 
it  appears  to  the  satisfaction  of  the  court  that  it  is  for  the 
advantage,  benefit,  or  best  interest  of  those  interested  in 
the  estate  so  to  do,  is  constitutional  ynd  valid  when  applied 
to  heirs  whose  interest  as  such  became  vested  after  the 
enactment  of  the  statute.  In  so  holding  the  court,  after 
referring  to  Brenhani    v.  Story, ^  said:       "The  distinction, 

'Gossatn  v.  McFarran.  70  Kv.  236. 
2  39  Cal.  J  79. 

201 


§     72  VOID    JUDICIAL    SALES. 

however,  between  that  case  and  this  lies  mainly  in  the  fact 
that  here  the  amendment  of  1893  was  in  force  before  the 
(loath  of  Porter,  and,  therefore,  the  estate  vested  inthe  heir, 
if  any  be  had,  subject  to  the  exercise  of  the  power  given  to 
the  court  by  the  amended  statute.       This  amended  statute 
has  heretofore  been  called  to  the  attention  of  this  court  in 
but  one  case,  so  far  as  I  am  aware,  namely,  in  Estate  of 
Packer. 1      In  that  case  Brenham  v.    Story'^  was  followed 
because  Packer  died  while  a  resident  of  this  State  before 
the  said  amendment  of  1893  was  enacted,  and  for  that  rea- 
son this  court  declined  to  consider  whether  said  amendment 
was  constitutional  when  applied  to  the  property  of  persons 
dving   after   its    passage,   as  that  question  did  not   arise. 
Here,  the  question  is  properly  before  us,  and  must  be  de- 
cided.      It  is  a  fundamental  proposition  that  governments 
are  formed,  among  other  things,  for  the  protection,  not 
only  of  the  rights  of  property,  but  of  property  itself;    and 
its  power  to  provide  for  the  custody,  care,  and  the  descent 
and  distribution  of  the  property  of  intestates,  real  and  per- 
sonal, as  well   as  the   disposition   of  it  by  will,  is   unques- 
tioned.^    It  is  true  that  under  our  statute,  upon  the  death  of 
the  ancestor,  the  property  of  the  intestate  at  once  vests  in 
the  heir;  but  it  vests  subject  to  conditions  imposed  by  the 
statute,  such  as  the  qualified  possession  and  control   of  the 
administrator,  under  the  direction  of  the  court  for  its  care, 
and  its  appropriation  to  the  payment  of  the   debts  of  the 
decedent,  expenses  of  administration,  and  other  liabilities 
enumerated  in  the  statute;  but  the  right  of  the  heir  to  in- 
herit the  estate,  being  itself    the  creature  of  the  statute, 
there  can  be  no  question  as  to  its  power  to   impose  these 
liabilities  upon  the  estate,  subject  to  which  the  property 
vests  in  the  heir.  That  the  administrator,  under  the  control 
and    direction  of  the  court,  is  charged   with  the   duty  of 

J  125  Cal.  396,  73  Am.  St.  Eep.  58. 

i39Cal.  179. 

3  In  re  Wilmerding,  117  Cal.  281,  284. 

292 


VOID    JUDICIAL    SALES.  §     72 

preserving  the  property  until  final  distribution   cannot   be 
doubted.     lie  must,  if  there  are  funds,  preserve  the  title  to 
the  real  estate  by  the  pa^^ment  of  tuxes,  and  its  value  bv 
making  necessary  repairs,  and  is  entitled  to  receive  the  rents 
and  profits  until  the  estate  is  settled,  and  must  'preserve  it 
from  damage,  waste,  and  injuiy.'     So  the  administrator, 
under  the  order  of   the  court,  at  any  time  after  receiving- 
letters,   nuiy  sell  'perishable  and    other  personal  property 
likely  to   depreciate  i-n   value,  or  which  will   incur  loss  or 
expense  by  being  kept,'^  whether  there  are  debts  or  other 
liabilities  to  be  paid  or  not;  and  this  direction   of  the  stat- 
ute has  no  other  basis  than  that  of  the  preservation  of  the 
best  interests  of  those   iu  whom  the  statute  vests  the  riaht 
of  property  when  it  is  not  required  to  meet  some  charge  im- 
posed l)y  law,  and  cannot  be  immediately  delivered  to  the 
heir.     So  perishable  pro[)erty  may  be  attached  under  a  dis- 
puted contract  liabilit}',  and  be  sold  by  order  of  the  court 
before  the  defendant's  liability  is  established.     These  in- 
stances in  which  the  State,  by  its  statutes,  disposes  of  pri- 
vate property,  arc  familiar  and  unchallenged,  and  are  based 
upon  the  duty  and  power  of  the   government   to   prevent 
injury  by  converting  one  ki«d  of  property  into  another  for 
the  benefit  of  the  owner.     The  statute  before  us  involves 
no    different   principle,  nor  the    exercise  of  any    different 
po\Ter.     "We  see  no  difference  in  principle  between  the  sale 
of  'personal  property  likely  to  depreciate  in  value,  or  which 
will  incur  Io.ns  or  expense  l)y  being  kept,'   and  the  sale  of 
real  estate  under  the  facts,  found  by  the  court  in  this  case, 
nor  any  difference  in  the  exercise  of  legislative  power  in  the 
two  cases.     The  statute  under  consideration  devests  no  one 
of  his  property,  but  authorizes  one's  real  estate  to  be  trans- 
muted  into   personal  property   under    such    circumstances 
that  the  consent  of  the  owner,  if  capable  of  giving  it,  would 
be  presumed."  •^ 

■  Code  Civ.  I'roc.  §  1522. 

2  Estate  of  Porter,  1-J9  Cul.  80.  7!t  Am.  Si.  Rpp.  7S. 

2!)  3 


TABLE  OF  CASES  CITED. 


[The  References  are  to  Pages.] 


Abbott  V.    CobuiQ   (28    Vt.  663,  67  Am. 

Dec.  730),  18. 
Abbott  V.  Curran  (08  N.  Y.  C65),  80. 
Ackerson  v.  Orchard  (7  Wash.  377),  64, 

68,241. 
Ackley  V.  Dygert  (3.^  Barb.  176),  63,  74. 
Adams  V.  Howard  (110  N.  C.  16),  183. 
Adams  v.  Jeffries  (12  Ohio,  272).  71. 
Adams  V.  Morrison  (4  N.  H.  166,  17  Am. 

Dec.  406).  124. 
Adams  V.  Norris  (23  How.  [U.  S  ]   353), 

15. 
Adams  V.  Palmer  (52  Me.  480) ,  251. 
Adams  v.  Smith  (5  Cow.  280),  166. 
Adler  V.  Turnbull  (57  N.  J.   Law,  02), 

21. 
AdluM   V.   Yard    (1  Rawls.  163,  18  Am. 

Dec.  606),  172. 
Alabama  Conference  v.  Price  (42  Ala. 

39) ,  53. 
Ala.  L.,  I.  &  T.  Co.  V.  Boykin  (38    Ala. 

510),  248. 
Aldrich  V.  Wilcox  (10  U.  I.  405),  124. 
Alexander  v.  Gordon  (101  Fed.  Rep. 

91), 245. 
Alexander  V.  Maverick  (18  Ttx.   179,67 

Am.  Dec.  695),  34,  54. 
Alexander  V  .  Miller's  Ex.  (18  Tex.  893, 

70  Am.  Dec.  314),  104. 
Alford  V.  Halljert  (74  Tex.  346),  30. 
Allen  V.  Kellam  (<i9  Ala.  442),  51. 
Allen  V.  Shepard  (87  III.  314),  60. 
Allison  V.  Allison  (S8  Va.  328),  143. 
Altman  v.  School  District  (35  Or.  85,  76 

Am.  St.  Hep.  46S),25. 
American,  etc.,  Co.  ▼.  Northwestern, 

etc.,  Co.  (53  Neb.  .538),  109. 


Amory  V.  Francis  (16  Mass.  308).  36. 
Amy  V.  Amy  (12  Utah,  310),  32. 
Anderson  v.  Butler  (31  8.  C.  183),  121. 
Anderson  V.  Foulks  (2  H.  &CJ.  346),  164. . 
Anderson  v.  Goff  (72  Cal.   65,  1  Am.  St. 

Rep.  34),  11. 
Anderson   v.   Gray   (134  111.  550,  23  Am. 

St.  Rep.  696),  104. 
Anderson  v.  Green  (40  Ga.  361),  120. 
Anderson  V.  Roberts   (18  Johns.   527,9 

Am.  Dec.  236),  4. 
Anderson  V.  Turner  (3  A.  K.  Marsta. 

131),  41. 
Andrews  v.  Avery  (14  Gratt.236,  72  Am. 

Dec.  355),  16. 
Andrews  v.  Goff  (17  R.  I.  205),  144. 
Andrews  v.  Key  (77  Tex.  35),  134. 
Andrews  v.  Russell  (7  Blackf .  474),  229. 
Andrews  v.  Scotton  (2  Bland,   636),  3. 
Angle  V.  Spear  (66  Ind.  488),  215. 
"Apel  V.  Kelsey   (47  Ark.  413),  106,  140, 

145. 
Arbnckle  v.   Cowtan  (3  Bos.  &  P.  327), 

125. 
Ared  v.  Montague  (26  Tex.  732,  84  Am. 

Dec.  663),  109. 
Arguello's  Estate,  In  re  (85  Cal.  151),  48. 
Arlington  S.  B.  v.  Paulsen  (59  Neb.  94), 

183. 

Armstrong  v.  McCoy  (8  Ohio,  128,   31 

Am.  Dec.  435),  1.53. 
Armstrong  v.  Short  (Oo  Ind.  320),  215. 
Arnett  v.  Bailey  (60  Ala.  435),  61. 
Arnold  v.  Cord  (16  Ind.  177),  108. 
AroDSleIn  v.  Irvine   (49  La.  Ann.  1478), 

120. 
Arrowsmlth  v.  Harmoning  (42  Ohio  St. 

254),  80,  92. 
Ashurat  v.  AShurst  (15  Ala.  781),  110. 


2'J5 


5;able  of  cases  cited. 


Atkins  V.  KInDan  (20  Wend.  241,  32  Am. 

Uec.  634),57,  79, 153. 
Atkinson  v.  Cummins  (OHow.  [U.S.] 

479),  156. 
Atwood  V.  Frost  (51  Mich.  360,  59  Mlcb. 

409),  187. 
Aultman  &  Taylor  Co.  v.  Syme  (103  N. 

Y.54),97. 
Axton  V.  Carter  (147  Ind.  672),  180. 


B. 


Babbitt  V.  Doe  (!  Ind.  355),  72. 
Babcoek  v.  Cobb  (II  Minn.  347),  89. 
Babcock  V.  Collins  (60  Minn.  73,  51  Am. 

St.  Rep.  503),  38. 
Bachelor  V.  Korb   (58  Neb.  122,76  Am. 

St.  Rep.  70),  00.  181. 
Bagg's  Appeal  (43  Pa.  St.  .512),  232. 
Bagley  v.  Ward  (37  Cal.  121,  99  Am.  Dec. 

256),  97,  114. 
Bailey  v.  Bailey  (41  S.  C.  337,  44  Am.  St. 

Rep.  713),  191,  205. 
Bailey  v.  Brown  (9  R.  I.  79),  41. 
Bailey  v.  Robinson  (1  Gratt.  4,  42  Am. 

Dec.  540),  120. 
Baker,  Ex  parte  (2  Leigh,  719),  7,  51. 
Baker  V.  Kelly  (11  Minn.  480),  244. 
Baker  v.  Varney  (129  Cal.  564),  22. 
Balf  r  V.  Davenport  N.  B.  (77  Iowa,  615), 

124. 
Bangor  V.  Warren  [(34  Me.   324,  56  Am. 

Dec.  657),  125. 
Bank  v.  Dudley  (2  Pet.  493),  113. 
Bank  v.  Trapier  (2  Hill  Ch.  25),  115. 
Bank  of  Colfax  v.  Richardson   (34  Or. 

518,  75  Am.  St.  Rep.  66S),32. 
Bank  of  Orland  v.  Dodson  (127  Cal.  208, 

78  Am.  St.  Rep.  42),  26. 
Bark  of  Tenn.  v.  Beatty  (3  Sneed,  305, 

65  Am.  Dee.  58),  110. 
Barbee  v.  Perkins  (23  La.  Ann.  331),  79. 
Barber  v.  Morris  (37  Minn.  194,  5  Am. 

5t.  Rep.  836),  6. 
Barbour  V.  Whitlock  (5Mon.l80),  218. 
Barker,  Ex  parte  (2  Leigh,  719),  7,  51. 
Barlow  V.  Clark  (67  Mo.  App.  340),  48. 
Barnes  V.  Morris   (4  Ired.  Eq.  22),  149. 
Barnes  V.  Trenton  G.   L.  Co.  (27  N.J. 

Eq.  23),. 39, 1.33. 
Barnett  v.  Bull  (81  Ky.  127),  89. 
Barnett  v.  Squyres  (93  Tex.  193,  77  Am. 

St.  Rep.  854),  135. 
Barnett  V.  Vincent  (69  Tex.  685,5  Am. 

St.  Rep.  98),  1,35. 
Barnett  v.  Wolf  (70  111.  76),  78. 


Barrelli  V.  Ganche   (24  La.  Ann.  324),. 

204. 
Barrett  v.  Churchill  (18  B.   Mon.  387), 

161. 
Barrett  V.  Garney  (.33  Cal.  530),  18. 
Barron  V.  Mayor  of  Baltimore  (7  Pet. 

243),  2.52,261. 
Barron  v.  Mullen  (21  Minn.  374),  143, 164. 
Bartee  v.  Tompkins  (4  .Sneed,  623),  161. 
Bartlett  v.  Judd   (21   N.  Y.  200,  78  Am. 

Dec.  131),  217. 
Bartlett  v.  Sutherland  (24  Miss.  395),  39, 
Bartley's  Heirs  v.  Hariis  (70  Tex.  181), 

41. 
Barton  v.  Hunter  (101  Pa.  St.  406),  132. 
Bassett  V.  Lockard  (60  111.  164),  162, 164. 
Bateman  v.   Reiller  (19  Colo.  547),  64, 

82. 
Bates  V.  Bacon  (66  Tex.  34S),  134. 
Bates  V.  Livingston  M.  Co.   (1.30  N.  Y. 

200),  126. 
Batten  V.  Toney  (65  N.  Y.  299).  140. 
Beach  v.  Walker  (6  Conn.  197), 248. 
Beal  V.  Harmon  (38  Mo.  435),  54. 
Beam   v.   City  of  Brownville  (91  Tex. 

684),  101. 
Beard  v.  Rowan  (1  McLean,  135),  41. 
Beardsleyv.  Higuian  (58  Neb.  257),  154. 
Beauregard  v.   New  Orleans   (18  How. 

[U.S.]  497),  70. 
Beckett  v.  Cuenin  (15  Colo.  281,  22  Am. 

St.  Rep.  399),  33. 
Beckett  v.   Selover  (7  Cal.  215,  58  Am. 

Dee.  237),16, 17,  25,  73,79. 
Beldlerv.  Frledeli  (44  Ark.  4H),87. 
Belcher  v.  Chambers  (53  Cal.  636),  10. 
Bell's  Appeal  (66  Pa.  St.  498),  41. 
Bell  V.  Craig  (52  Ala.  215),  180. 
Bell  V.  Green  (38  Ark.  78),  106. 
Bell  V.  King  (70  N.  C.  330),  229. 
Bell  V.  Love  (72  Ga.  125) ,  51. 
Bell  V.Shaffer  (154  Ind.  413),  128. 
Benedict  V.  Bonnot  (39  La.  Ann.  972), 

183. 
Benedict  v.  Montgomery  (7  W.   &  S. 

238,  43  Am.  Dec.  230),  172. 
Benefleld  v.  Albert  (1.32  III.  665),  84. 
Benners  v.  Rhinehart  (107  N.  C.  765,  22 

Am.  St.  Rep.  909),  101. 
Bennett,  Ex  parte  (44  Cal.  88),  7. 
Bennett  v.  Nichols  (12  Mich.  22),  187. 
Benson  v,  Cllley  (8  Ohio  St.  613),  31,  71. 
Bentley  v.  Long  (1  Strob.  Eq.  52,  47  Am. 

Dec.  523),  190. 
Bentz's  Estate  (36  Cal.  687),  67. 
Bernard  v.  Boiler  (105  Cal.  214),  126. 


296 


TABLE  OF  CASES  CITED. 


BeroDio  v.  Ventura  C.  L.  Co.  (129  Cal. 

232,  79  Am.  St.  Rep.  118),  23,  24. 
Bei-iiam  V.  Rogers  (43  Fed.   Rep.  467), 

81. 
Berry  v.  Gates  (175  Mass.  373).  1P4. 
Bethel  V.  Bethel  (6  Bush,  65).  147. 
Bettison  v.   Budd   (17  Ark.  55a,  65  Am. 

Dec.  442),  153. 
Bezev.  Calvert  (2  Tex.  Civ.  App.  202), 

156. 
Bigelow  V.  Bigelow  (4  Ohio,  138,  19  Am. 

Dec.  697),  17. 
Bigelow  V.  Booth  (.39  Mich.  622),  100. 
Bigelow  V.  Cddy  (171  111.  2W,  63  Am.  St. 

Rep.  230),  40. 
Bigelow  V.   Renker   (25   Ohio    St.  542), 

101. 
Biggs  V.  Bickel  (12  Ohio  St.  49),  43. 
Billingham  v.  Jenkins  (7  Sm.  &  M.  479), 

36. 
Birchallv.  Griggs  (4  N.  D.  3(5,  50  Am. 

St.  Rep.  654),  12. 
Bishop  V.  O'Connor   (51   111.   437),  204, 

205. 
Bishop  V.  O'Connor  (69  111.  4.il),  l'-5. 
Blackman  v.  Baunian  (22  Wis.  611),  89. 
Blair,  Ex  parte  (13  Met.  126),  3fi. 
Blair  V.  Compton  (33  Mich.  414),  113. 
Blakely  v.  Abert  (l  Dana,  1^5),  124. 
Blanchard  v.   Webster  (62  N.  H.  467), 

71,  82. 
Bland  v.  Bowel  (.53  Ala.  152),  2f5. 
Bland  V.  MuDcaster  (24  Miss.  62,  57  Am. 

Dec.  162),. '.6,  108,  121. 
Blanks  V.   Rector  (24  Ark.  496).  97. 
Bledsoe    v.    Willmgham    (G2   Ga.    550), 

105. 
Blodgett   V.    nut    (29  Wis.  169),  73,  108, 

195,203. 
Blodgett  V.  Hobart  (18  Vt.  414).  214. 
Blodgett  V.  Perry   (97  Mo.  263, 10  Am. 

St.  Rep.  .307),  149,   151. 
Blood  V.  Hayman  (13  Met.  231),  1.33. 
Bloom  V.    I'.nrdick    (1   Hill,  130,  37  Am. 

Dec.  2^9),  67,  63,  73,  85,  92. 
Blossom  V.  Estes  (84  N.  Y.  614),  11. 
Blossom  V.  -Milwaukee,  etc.,  R.  R.  Co. 

(8  Wall.  106),  110. 
Bludworth  v.  Boole  (21  Tex.  Civ.  App. 

551).  15.3. 
Blumberg  v.  Birch  (99  Cal.  416,  37  Am. 

8t.  Rep.  67),  13. 
Bobb  V.  Buriium  (.50  Mo.  .334).  l.')5. 
BodhlD  V.  Merit  (102  Ind.  203),  186. 
Bogart  V.  Bell  (112  Ala.  412),  140. 
Bogga  V.  Ilargrave  (15  Cal.  569,  76  .\m. 
Dec.  .161),  1<;7,  168. 


Boland's  Estate  (55  Cal.  310),  61,  66. 
Bollver  v.  Zeigler  (9  S.  C.  287),  168. 
Boiling  V.  Smith  (108  Ala.  411) .  140. 
Bompart  v.  Lucas  (21  Mo.  59S),  54. 
Bond  V.   Montgomery   (56  Ark.  563,  35 

Am.  St.  Rep.  119),  47  205,  206. 
Bone  V.  Tyrrell  (113  Mo.  175).  140. 
Bonnell  v.  Holt  (89  III.  71).  73. 
Bonner  V.  Greenlee   (6  Ala.  411),  140. 
Bonner  V.  Lepley  (61  Miss.  392),  192. 
Boody  V.  Emerson  (17  N.  H.  577),  78. 
Boonv.    Bowers    (30   Miss.  246,  64  Am. 

Dec.  159),  271. 
Booth  V.  Booth  (7  Conn.  .^50),  248. 
Borders  v.  Hodges  (l.=J4  III.  498),  60,  l,i6. 
Boren  v.  McGechee  (6  Port.  432,  31  Am. 

Dec.  695).  95. 
Boring  v.  Lemmon  (5  H.  &  J.  223),  149. 
Boro  V.  Harris  (13  Lea.  36).  162. 
Botsford  V.  O'Connor  (57  III.  72),  112. 
Bottorff  V.  Covert  (90  Ind.  ,50S).  43. 
Bouldin  V.  Ewart  (63  Mo.  330).  131. 
Bowen  V.  Bond  (SO  111.  351),  64,   69,80. 
Bowen  V.  Jones  (13  Ired.  2.')),  111. 
Bowen  V.  AVickersham    (124  Ind.  404,  19 

Am.  St.  Rep.  106),  159. 
Howers  v.  Arnoux    (30  X.    Y.  Sup.  Ct. 

Rep.  530).  138. 
Boyce  V.  Sinclair  (3  liush.  261),  2<8. 
Boyd  v.  Blankmnn    (29  Cal.  19,  87  Am. 

Dec.  146),  4,  7^,119,  121. 
Bnyd  V.  Hankinson  (S3  Fed.  Rep.  876), 

99. 
Boyerv.  East  (161  N.  Y'.  5S0,  76  Am.  St. 

Rep.  290),  184. 
Boy  kin  v.  Cook  (61  Ala.  472),  161,  162. 
Boyle  V.  Marouey  (73  Iowa,  70,  5  Am. 
,     St.  Rep.  657),  98. 
Boyles  V.  Bovles  (37  Iowa,  592),  243. 
Bozeman  v.  Bozeman  (82  Ala.  389),  84. 
Brackeit  v.    Banegas    (116  Cal.  '278,58 

Am.  St.  Rep.  164),  168. 
Braddee  v.  Brownfield   (2  W.  &  S.  271), 

228. 
Hradford  v.  Buchanan  (39  S.  C.  23),  128. 
Bradley  v.  Drone   (187  III.    175,79  Am. 

St.   Rep.  214),  .32,81. 
Bradley  v.   Miss  )ini,  etc. ,  Ry.  Co.  (51 

Neb.  6.J3,  66  Am.  St.  Rep.  473),  18. 
Bradley  V.  S  indllands  (66  Mmn.  40.  01 

Am.  St.  RH).  386),  114. 
Braley  v.  Simonds  (61  N.  H.  369).  129. 
Brandon  v.  Brown  (106  111.519),  186. 
Hranham  v.  San  Jos«  (24  ('al.  585),  168. 
I'.ray  v.  Adams  (114  Mo.  486).  34. 167. 
I'.ray  v.  .Marshall  (75  Mo.  327).  131. 
Bray  v.  .MtCUtiy  (t5  Mo.  128),  12. 


2\n 


TABLE  OF  CASES  CITED. 


Bree  v.  Bree  (51  III.  367).  63,  75. 
Brenham  v.  Davidson  (61  Cal.  352),  266, 

274,  285,  2S6. 
Brenbam  v.  Story  (39  Cal.  185),  285,  286, 

2,11,  292. 
Brevard  v.  Jones  (50  Ala.  221),  102. 
Brevoort  v.  (irace  (53  N.  Y.  245),  286. 
Brewer  v.  Nash  (16  R.  I.  488,  27  Am.  St. 

Rep.  749),  171. 
Brickhouse  v.   Sutton    (98  N.  C.  103,  6 

Am.  St.  Rep.  497),  229,  248. 
Brien  v.  Robinson    (102  Tenn.  157),  131, 
Briggs  V.  Tye  (16  Kan.  291),  142. 
Bright  V.  Boyd  (1   Story,  193,  478,  and  2 

lb.  605),  200,203,204,211. 
BriDton  v.  Seevers  (12  Iowa,  389) ,  251. 
liroadwater  v.  Richards  (4  Mont.  80),  79. 
Brobst  V.  Brock  (10  Wail.  519),  191. 
Brock  V.  Frank  (51  Ala.  91),  17. 
Brogan  V.  Brogan    (63  Ark.   405,  58  Am. 

St.  Rep.  124),  48. 
Brooks  V.  Bergner  (83  Md.  352),  37. 
Brooks  V.  Rooney   (11  Ga.   423,56  Am. 

Dec.  430),  108,  154. 
Broughton  v.  Bradley  (.34  Ala.  694),  17. 
Brown  v.  Armistead  (6   Rand.  594),  41. 
Brown  v.  Brown  (41  Ala.  215),  84. 
Brown  v.  Brown  (73  Iowa,  430),  191. 
Brown  v.  Butters  (40  Iowa,  544),  106. 
Brown  V.  Campbell  (100  Cal.  635,  38  Am. 

St.  Rep.  314),  10. 
Brown  v.  Cliristie   (27  Tex.  75,  84  Am. 

Dec.  607),  111. 
Brown   V.Duncan    (132  111.  413,22  Am. 

St.  Rep.  545),  101,  103. 
Brown  v.  Gilmor  (8  Md.  .322),  143. 
Brown  V.  Hobbs  (19  Tex.  167),  1.39. 
Brown  V.  Hobson  (3  A.   K.  Marsh.  380, 

13  Am.  Dec.  187),  40. 
Brown  v.  Lane  (19  Tex.  205),  169. 
Brown  v.  Lutheran  Church  (23  Pa.  St. 

500),  125. 
Brown  V.  Redwyn  (16  Ga.  76),  34. 
Brown  v.  Wnitmore  (71  Me.  65),  43. 
Brown  V.  Williams  (87  Ala.  353),  236. 
Brown  V.  Wilson   (21  Colo.  31.9,  52  Am. 

St.  Rep.  228),  32. 
Brownell  V.  Stoddard  (42  Neb.  177),  127. 
Brubaker  v.  Jones  (23   Kan.  411),  154. 
Bruce  v.  Bradshaw  (69  Ala.  360),  270. 
Brummagin  V.  Ambiose  (8Cal.368),  143. 
Brusehke  V.  Wright  (166  111.  183,  57  Am. 

St.  Rep.  125),  187,  191,  205. 
Brusie  v.  Gates  (bOCal.  467),  105. 
Bryan  v.  Bunder  (23  Kan,  95),  6l). 
Buchanan  V.Tracy  (45 Mo.  437),  155. 


Buckley  v.  Superior  Court  (102  Cal.  6, 

41  Am.  St.  Rep.  135),  19. 
Bull,  Matter  of  (45  Barb.  3.34),  273. 
Bullard  v.  Hinckley  (6  Greeni.289,  20 

Am.  Dec.  304),  129. 
Bullard  v.  McArdle  (98  Cal.  365,  35  Am. 

St.  Rep.  176),  29,  95. 
Bump  V.  Gard  (107  Ind.  573),  173. 
Bunce  V.  Bunce  (59  Iowa,  532),  77,  93. 
Bunnv.  Lindsay   (95  Mo.  250,  6  Am.  St. 

Bep.  49),  128. 
Bunton  V.  Root  (66  Minn.  454),  141. 
Burbank  v.  Semmes  (99  U.  S.  138),  42. 
Burch   V.  Lautz    (2  Rawle,  392,21  Am. 

Dec.  458),  121. 
Burden  v.  Taylor  (124Mo.  12).  140. 
Burdett  v.  Silsbee  (15  Tex.  615),  18. 
Burge  V.Brown    (5  Bush,  535,96  Am. 

Dec.  369),  98. 
Burke  v.  Da^ly   (14  Mo.   App.  542),   123, 

124. 
Burkettv.  Clark  (46  Neb.  466),  104. 
Burnett  V.  McCleery  (78 Mo.  676).  12. 
Burns  V.  Adams  (98  Cal.  667),  64. 
Burns  v.  Hamilton  (33  Ala,  210,  70  Am. 

Dec.  570),  44,  161,  162,  163,  168. 
Burns  V.  Ledbetter  (56  Tex.  282),  161, 

168. 
Burrls  V.  Kennedy  (108  Cal.  331) ,  121. 
Burton  v.  Lies  (21  Cal. 87),  167. 
Burton  v.  Spiers   (92  N.  C.  503),  108,  132. 
Butler   V.    Fitzgerald   (43  Neb.    192,  37 

Am.  St.  Rep.  741),  1.34. 
Butler  V.  Stephens  (77  Tex.  599) ,  144. 
Bybee  v.  Ashby   (2  Gilm.  151,  43  Am. 

Dec.  47),  110. 
Byeis  V.  Fowler   (12  Ark.  218,54  Am. 

Dec.  271),  87. 
Byrd  v.  Turpin  (02  Ga.  591),  192. 


Cdbbanev.  Skinner  (56  Mo.  367),  38. 
Cadwalader  v.  Nash  (73  Cal.  43),  156. 
Cain  V.  Young  (1  Utah,  361),  45. 
Calder  v.  Bull  (3  Dall.  386),  220,  227,252. 
Caldwell  v.  Blake  (69  Me.  458),  134. 
Caldwell  V.  Caidwtll   (45  Ohio  St.  512), 

121. 
Callahan  v.  Fluker  (49  Li.  Ann.  237),  51. 
Cambreliug  V.  I'intor  (125N.  Y.  610), 

164. 
Camden  v.  Plain  (91  Mo.  117),  69, 141. 
Cameron  v.  Coy  (165  Pa.  290),  180. 
Campbell  V.  Brown    (6    How.    [Miss] 

1C6),  72,  161. 


298 


TABLE  OF  CASES  CITED. 


Campbell  v.  Drals  (125  Cal.  253) ,  31. 
Campbell  V.  Gardner  (11  X.  J.Eq.  423), 

165.  ' 

Campbell  V.  Knights  (26  Me.  224,  45  Am. 

D.  e.  107),  89. 
Campbell  V.  P.  S.   I.   Works   (12  R.   I. 

452),  130. 
Campbell  v.  Parker  (S.  J.  Ch.,  45  Atl. 

Rep.  116),  2. 
Campbell  v.  Smith  (116  Ala.  290,  67  Am. 

St.  Rep.  114).  ion. 
Cantrell  v.  Letwinger  (44  Miss.  437),  12. 
Capthirt   V.  Dowery    (10  W.  Va.   130), 

164. 
Capps  V.   LeachmRn   (90   Tex.   499,   59 

Am.  St.  Rep.  S.SO).  102. 
Carder  v.  Culbertson   (100  Mo.  269,  18 

Am.  St.  Rep.  518),  106. 
Carey  v.  West  (139  Mo.  146),  141. 
Cargile  v.  Fernald  (63  Mo;  304),  270,  289. 
Carnick  v.  Myers  (14  Barb.  9),  112. 
■Carpenter  v.   Pennsylvania   (17  How. 

[U.  S.]  456),  252. 
Carpenter  V.  Sherfy  (71111.  427),  152. 
Carr  V.Brown   (20  R.    I.  217,  79  Am.  St. 

Rep.  855),  16. 
Carroll  v.  Olmstead    (16  Ohio,  251).  266. 
Cartu-  V.  State  (42  La.  Ann.  927,  21  Am. 

St.  Bep.  404).  125. 
Carter  V.  Waugh  (42  Ala.  452),  79. 
Casey    v.  Gregory  (13  B.  Mon.   505,  56 

Am.  Dec.  581),  87. 
Cashlon  v.  Fania  (47  Mo.  133).  164. 
Cafsell  V.  Joeeph  (184  III.  378),  34. 
Cassella  v.  Gibson  (Tex.  Civ.  App.,  27 

S.  W.  Rep.  72.5).  145. 
Castleman  v.  Relfe  (.50  Mo.  583),  141. 
Catcbeart  v.  Sugenhelner  (188.  C.  123), 

205. 
Cawley  V.  Leonard   (28  N.  J.  Kq.  467), 

1(5. 
Cerdabrac  v.  Strong  (67  Miss.  709),  13. 
Chadbournev.  Stockton  S.  &  L.  Soc. 

(Cal.,  .^6  Pac.  Rep.  127),  125. 
Chambers  v.  Cochran   (18  Iowa,  160), 

169. 
Chambers  v.  Jones  (72  111.  275),  74,  110, 

1S5.  192,  204. 
Chandler  v.  Calcord  (1  Okla.  260),  94. 
Chandler  v.  Moulton  (33  Vt.  247),  121. 
Chandler  V.  Northrop    (24   Barb.    129), 

231. 
Chapman  V.  Brooklyn   (40  X.   Y.  372), 

167. 
Chapman  v.  Harwood  (8  Blackr.  82,  44 

Am.  Dec.  7.36),  137,  149. 


Chase  v.  Roes  (36  Wis.  267),  7.  61. 
Cheese  v.  Plymouth  (20  Vt.  469,  50  Am. 

Dec.  52),  102. 
Chestnut  v.  Shane  (16  Ohio,  599,  47  Am. 

Dec.  3fc7),  248.  254. 
Chicago,  etc.,  Co.  v.  Cook  (43  Kan.  83), 

73. 
Childs  V.  Harpman  (72Ga.  791),  8. 
Childs  V.  McChesney  (20  Iowa,  431,  89 

Am.  Dec.  545).  113. 
Choate  v.  Spencer  (13  Mont.  127,  40  Am. 

St.  Rep.  425),  31. 
Chrlstensen.  In  re  (17  Utah,  412,  70  Am. 

St.  Rep.  794),  9,235. 
Citizens*,  etc..  Co.  v.  Robb'ns  (128  Ind. 

449,  25  Am.  St.  Rep.  445),  42. 
City  Bank  V.  Walden   (1  La.  Ann.  46), 

148. 
City  of  Portland  V.  City  of  Bangor   (65 

Me.  120,  3  Cent.  L.  J.  651).  253,261. 
Clafllnv.   Dunne  (129  III.   241,   16  Am. 

St.  Rep.  263),  30. 
Clancy  v.  Stephens  (92  Ala.  577),  53. 
Clark  V.  Coe  (52  Hun,  379.5  N.  Y.  Supp. 

243),  36. 
Clark  V.  Hillis  (134  Ind.  421),  34,  78. 
Clark  V.  Sawyer  (48  Cal.  133),  154. 
Clark  V.  Thompson  (47  111.   25,  95  Am. 

Dec.  457),  72.74. 
Clark  V.   Van  Surlay   (15  Wend.  436), 

266,  272,273. 
Clingman  v.  Hophie  (78  111.  152).  98. 
Clusky  v.  Burns  (120  Mo.  567),  266,  268, 

270,  278.  289. 
Cobb  V.  Garner  (105  Ala.  467,  53  Am.  St. 

Rep.  1.36).  47,  82,  83. 
Coble  V.  OConnor  (43  Xeb.  49).  132. 
Cochrane  v.  Parker  (12  Colo.  App.  169), 

30. 
Cochran  v.  Van  Surlay  (20  Wend.  373, 

S2  Am.  Dec.  670),  273,  285. 
Cockey  v.  Cole  (28  Md.  276,  92  Am.  Dec. 

604),  143. 
Code  V.  Bean  (93  Cal.  578),  23. 
Coter  V.  Miller  (7  Bush,  645),  88. 
Coffin  V.  Bell  (22  Nev.  169,  .^8   Am.    St. 

Rep.  738),  33. 
Coffin  V.  Co<  k  (106  N.  C.  376),  154. 
Coffin  V    Cottle  (9  Pick  287),  26. 
Cogan  V.  Frisby  (36  Miss.  185).  162. 
Cohea  v.  State  (34  Miss.  178),  89. 
Colbert  v.  Moore  (64  Ga.  502;,  162. 
Colle  v.  Jameson  (13  Nat.   Bank   Reg. 

4),  217. 
Collais  v.  McLPOd   (8  Ired.  221,  49   Am. 

Dec.  3-|6),  111. 


2D1) 


TABLE  OF  CASES  CITED. 


Collier  V.Whipple   (13  Wend.  224),  165. 
Collier's  Admr.  v.  Widdham   (27  Ala. 

291,  62  Am.  Dee.  7(i7),98. 
Collins  V.  Us  11  (82  Tex.  269,  27  Am.  St. 

Rep.  877),  79. 
Collins  V.  Montgomery  (2  N.   &  MeC. 

89).  11.5. 
Colville  V.    Bentlpy   (70  Midi.   248,  15 

Am.  St.  Rep.  312),  126. 
Colyer  v.  Capital  City  Bank  (103  Tenn. 

723), 125. 
Comegys  V.  Emerirk   (134  Ind.   148,  39 

Am.  St.  Rep.  245),  121. 
Commlssiontrs  V.  Mcintosh   (30  Kan. 

239), 142. 
Commonwealth  t.  Sherman's  Admr. 

(18  Pa.  St.  343),  172,  182. 
Comstock  V.  Crawford  (3  Wall.  396),  50, 

52,70. 
CoDce  V.  McCoy  (101  Tenn.  5S7,  70  Am. 

St.  Rep.  714),  166. 
Conklin  v.  Edfjerton  (21  Wend.  430),  40. 
Conley  v.  Redwine  (109  Ga.  640,  77  Am. 

St.  Rep.  398),  108. 
Connell  v.  Wilhelm  (36  W.  Va.  598),  109. 
Conover  v.  Musgrove  (68  111.  58) ,  143. 
Continental  T.  Co.  V.  Nobel   (30    N.  Y. 

Supp.  994),  50. 
Conyers  V.  Mericles  (75  Ind.  443),   214. 
Cook  V.  Toumbs  (.S6  Miss.  685).  167. 
Cock  V.Travis  (20  N.  Y.  400).  1.30. 
Cook  V.  Piatt  (98  N.  Y.  35),  40. 
Cookerly  V.  Duncan  (87  Ind.  332),  250. 
Oooley  V.  Wilson  (42  Iowa,  42«),  87,  108. 
Coonv.  Fry    (6  Mich.  506),  62,   64,   78, 

139. 
Cooper  V.  Horner  (62  Tex.  356),  133. 
Cooper  V.  Reynolds  (10  Wall.   308).  25. 
Cooper  V.  Robinson  (7  Cush.  184),  154. 
Cooper  V.  Sunderland   (3  Iowa,  114,  66 

Am.  Dec.  52),  89. 
Coppinger  V.  Rice  (.33  Cal.  408),  15. 
Coras  V.  Bertoulin  (45   La.   Ann.   160), 

109. 
Corbett  V.  Clenny  (52  Ala.  480),  133,  149. 
Core  V.  Strieker  (24  W.  Va.  689),  145. 
Corley  V.  GoU  (8  Tex.    Civ.   App.   184), 

146. 
Corniff  V.  Cook  (95Ga.61,   51   Am.   St. 

Rep.  55),  176. 
Cornwall's  Estate  (1  Tucker,  250).  54. 
Cortezv.  Superior  Ct.    (86  Cal.  274,  21 

Am.  St.  Rep.  37),  29. 
Corwin  V.  Merritt  (3Barb.  341),  57,   72, 

77. 
Corwin  V.  Shoup  (76  111.  246),  173. 


Corwith  V.  State  Bank  (11  Wis.  430,   78 

Am.  Dec.  719),  102. 
Copgrove  V.  Meiz  (It.  I.,  37  Atl.   Rep. 

704),  191. 
Cottingham  v.  Spi  inger  (88  111.  90),  150. 
Cotton  V.  Carlisle  (85  Ala.   175,  7  Am. 

St.  Rep.  29),  134. 
Coulson  V.  King  (42  Kan.  607,  16  Am.  St. 

Rep.  603),  44. 
Coward  v.  Chastain  (99  N.  C.  443,  6  Am. 

St.  Rep.  533),  29. 
Cowles  V.  Hall  (113  N.  C.  359),  P6. 
Cowles  V.  Hardin    (101  N.  C.  338,  9  Am. 

St.  Rep.  36),  107. 
Cox  V.  Boyce  (152  Mo.  576,   75  Am.    St. 

Pep.  483),  6,  31. 
Coy  V.  Downie  (14  Fla.  644),  72. 
Cram  v.  Rotheriuel  (98  Pa.  St.  300),  132. 
Crane  v.  Guthrie  (48  Iowa,  542),  129. 
Cravens  v.  Moore  (61  Mo.  178),  6. 
Crawford  v.  Gray  (131  Ind.  53),  122. 
Crawford  V.  McDonald   (88  Ttx.   626), 

85. 
Crenshaw  v.  .Julian  (29  S.  C.  2S3,  4  Am. 

St.  Rep.  719),  125. 
Crippen    v.    Chappel   (36  Kan.  495,  57 

Am.  Rep.  187),  205. 
Crisp  V.  Crisp  (86  Mo.  630),  128. 
Cromwell  v.  Hull  (97  N.  Y.  209),  80. 
CromwfU  V.  McLean  (123  N.  Y.  474),  24. 
Crosby's  Estate,    In    re    (P5  Cal.    574), 

48. 
Crosby  v.  Dowd  (61  Cal.  557),  85. 
Cross  V.  Wf  are  (62  N.  H.  125),  128. 
Crouch  V.  Eveleth  (12  Mass.  503).  110. 
Crouse  v.  Peterson  (80  Am.  St.  Hep.  96 

to  123), 40,  41. 
Crouter  v.  Crouter  (133  N.  Y.  55),  164. 
Crowell   V.    Connelly    (6   Barr,    239), 

172. 
Crowell  V.  McConkey  (6  Pa.   St.   168), 

171. 
Crusoe  V.  Rutler  (3G  Miss.  170).  39. 
Culbertson  V.  Coleman   (47  Wis.   193), 

288. 
Culvt  r  V.  Hardenburgh  (37  Minn.  225) , 

147. 
Cunningham  v.  Anderson  (107  Mo.  371, 

28  Am.  St.  Rep.  417),  73,  75,  147,  205. 
Cunningham  v.  Buik  (45  Ark.  367),  98. 
Curley's  Succession   (18  La.  Alu.  728), 

106,  108. 
Cuiran  v.  Kuby  (87  Minn.  330),  82. 
Currie  v.  Stewart  (26  Miss.  646),  89. 
Curtis  V.  Norton  (1  Ohio,  137),  J40. 
Cutts  V.  Hawkins  (9  Mass.  543),  17. 


300 


TABLE  OF  CASES  CITED. 


D. 


Dilngerfipld  v.  Smith  (83  Va.  SI),  73. 
Ddkin  V.  DemiDg  (6  Pai.  95),  9. 
Dakio  V.  Hndaon  (6  Cow.  222),  73. 
Dale  V.  Mndcalf  (9  Pa.  St.  110),  246. 
Ddudt  V.  Harman  (16  Mo.  App.  203),  47. 
Ddugdtry  V.  Tdemeatt   (105  Ala.  615,  53 

Am.  St.  Rep.  146).  71. 
Davenport  v.  Sovil  (6  Ohio  St.  465),  214. 
D  ivenport  v.  Young  (16  111.  54S,  63  Am. 

Dec.  320),  277. 
Davllson  v.  Uavidaoa    (28    La.   Ann. 

269),  121,  205. 
Davidson  v.  Kahn  (119  Ala.  364),  154. 
Dividion  V.  Koehler  (76  Ind.  412),   266. 
Davie  V.  DiVie   (Ark.,   18   S.    W.   Rep. 

935), 1S3. 
Davie  V.  McDaniel  (47  Gi.  200) ,  34. 
D  IV  is  V.  Bra  ado  a  (1  How.  [Miss.]  154), 

151. 
Davis  V.  Christlun  (ISGratt.  1),  .S9. 
Davis  V.  Comer  (108  Gd.  117,  75  Am.  St. 

Rep.  33).  97. 
Davis  V.  Gaines  (104  U.  8.  386),  80,  170, 

191,  204. 
Divis  V.    Helbig   (27  Md.    452,    92  Am. 

Dec.  646),  266. 
Davis  V.  Hoover  (112  Ind.  423),  37,  38. 
Davis  V.Kline  (76  M.).  310),  154. 
Davis  V.  Menasha  (21  Wis.  491),  228. 
Dav  ii  V.  R-iaVf  s  (7  Lea,  585),  205. 
Davis  V.  State  Bank  (7  Ind.  316),  248. 
Davis  V.  Wakelee  (154  U.  S.  685),  10. 
Davison   v.    Johonnot    (7  Met.   388,   41 

Am.  Dec.  U-*).  266,  277. 
Dawson  V.  Litsey   (10    Bush,   408),   124, 

143. 
Day  V.  Graham  (97  Mo.  398),  70. 
Dean  v.  Dee  (5  W.sh.  580),  126. 
Dean  v.  LanfurJ  (9  Rich.  Eq.  423),  151, 

218. 
Dean  v.  McConkey  (5  Barr,  168),  172. 
Dean  v.  Morris  (4  G.  Greene,  319),  162. 
Deans  v.  Wilcoxon  (25  Fla.  980),  74,82, 

lis. 

Dcirborn   L.   Co.    v.    Chicago    (55  III. 

App.  .^8),  1U3. 
De  Bardelaben    v.    Stoundenmire    (48 

Ala.  04:^).  51,64. 
De  Chastellux  v.  Falrchlld  (  15  Pa.  St. 

18,  53  Am.  I>ec.  570),  22S,  232. 
Deckt^r  v.  Fussier  (146  Ind.  16),  175. 
Dsford  V.  Mercer  (24  Iowa,  118,    92  Am. 

Oec.  460).  171,  173,  180. 
Detord  V.  McWdtty  (82  M  1.  168),  88. 


DeForest  v.  Farley  (62  N.  Y.  628),  87. 
De  La  Montagnie  v.  Union  Ins.  Co.   (42 

Cal.  291),  42. 
De  La  Moutanya  v.    De  La  Montanya 
(112  Cal.  109,53  Am.  St.  Rep.  168),   13, 
14. 
Delaney's  E^itate  (49  Cal.  77).  39. 
De  Lany  v.  Knapp  (111  Cal.  165,  52  Am. 

St.  Rep.  160),  135. 
Delaplane  v.  Lawrence  (3  N.   Y.  304), 

131. 
DelHy  V.  Chapman  (3  Or.  45'^),  44. 
De  Leon  v.  Hiller  (77  Ga.  740),  12. 
De  Loach   v.  Robbins  (102   Ala.  288,   48 

Am.  St.  Rep.  46),  96,  97.  104. 
Denis  v.  Winter  (63  Cal.  18).  139. 
Dennis  V.  Bint  (12i  Oal.  39,  68  Am.    St. 

Rep.  17),  145. 
Dennis  v.  Winter  (ri3  Cal.  16),  146. 
Denny  v.  Mattoon  (2  Allen,  379,  79  Am. 

Dec.  784),  228,  233. 
Dentzel  v.  Waldie  (30  Cal.  138),  248. 
Denver  City,  etc.,  Co.  v.  Mi'idHUgh  (12 

Colo.  434,  13  Am.  St.  Rep.  234),  180. 
Deputrgnny  v.  Young  (143   U.    S.  241), 

164. 
De  Riemer  v.  De  Cantillon   (4  Johns. 

Ch.  85),217. 
Derneau  v.  Garney  (108  Ind.  579),  206. 
De  Sepulveda  V.  BauKh    (74   Cal.   468,5 

Am.  St.  Rep.  455),  86,  15S. 
Devincenzl,  Estate  of  (119  Cal.  498),  64, 

66. 
Diamond  v.  Turner  (11  Wash.  189) .  150. 
Dickerson.  lure  (HI  N.  C.  108).  167. 
Dickerson  v.  Talbot   (14  B.  Mon.   60), 
140. 
,  Dickey  V.  Beatty  (14  Ohio  St.  389),  212. 
Dicklson  V.  Dicklson  (124  HI.  483) ,  73. 
Dickinson  v.  Cowley    (15  Kan.  269),  12. 
District    of    Clay    v.    District   of   Bu- 
chanan (63  Iowa,  188),  9. 
Dodd  v.  Neilson  (90  N.  Y.  243),  161. 
Dje  V.  Andeis  in  (5  Ind.  33),  73. 
Doe  V.  Bowen  (8  Ind.  197,   65  Am.  Dec. 

759),  33,  72. 
Doev.  Douglas  (8  Blackf.   10,  44  Am. 

Dec.  732),  269. 
Doe  V.  Hardy  (.52  Ala.  291),  148. 
Doe  V.  Harvey  (3  Ind.  104),  34. 
Doe  V.  Henderson  (4  Ga.   148,  48   Am. 

Doc.  216),  84. 
Doe  v.  IngeraoU  (US.  &  M.  249,  49  Am. 

Dec.  67),  95. 
Doe  V.  McLoskey  (1  Ala.  708),  71. 
D  je  V.  Woodion  (1  Hay  w.  24),  112. 


:m)\ 


TABLE  OF  CASES  CITED. 


Doerr  V.  Forsythe  (50  Ohio  St.   726,  40 

Am.  St.  Rep.  703).  13. 
Dolargue  v.  Cress  (71  111.  380),  176. 
Dooley  V.  Bell  (87  Ga.  74),  51. 
Doolittlev.  Holton  (28  Vt.  819,  67  Am. 

Dee.  745),  31. 
Dorland  v.  Hanson  (SI  Cal.  202,  15  Am. 

St.  Rep.  44),  29. 
Dorrance  v.  Raynsford  (67  Conn.  1,   52 

Am.  St.  Rep.  266),  73. 
Dorgey  v.  Gilbert  (11  G.  &  J.  87),  266. 
DoughertyiV.  Lintblcum  (8  Dana,  198), 

129. 
Douglas  V.  Bennett  (21  Miss.  680) ,  204. 
Douglas  v.JIIaberstro  (88  N.  Y.  611),  102. 
Downer  V.  Smitb  (24  Cal.  114).  15. 
Downing  v.lLyford  (57  Vt.  507),  120. 
Downing    v.    Rugar    (21   Wend.   178,  34 

Am.  Dec.  223),  51. 
Drake  V.  Hale  (38  Mo.  346),  11. 
Draper  V.  Bryson   (17   Mo.  71,  57  Am. 

Dec.  257),  108. 
Drefall  V.  Tuttle  (42  Iowa,  77) ,  95. 
Dresbach  V.  Stein   (41  Obio  St.  70),  3, 

143,  164.  « 

Driggs  V.    Abbott    (27  Vt.   5S1,  65  Am. 

Dee.  214),  18. 
Drinbwater  .v.    Drinkwater    (4  M^ss. 

354),  130. 
Dubois  V.  McLeanl(4  McLean,  476),  277. 
Duckworth    v.    Vaughn    (27  La.   Ann. 

599),  132. 
Duff  V.  Randall  (UG.Cal.  226,  58  Am.  St. 

Rep.  158),  135. 
Dufour  V.    Camfane   (11  Mart.  615,  13 

Am.  Dec.  360),  165,  170.  190,  203. 
Dugger  V.  Tayloe  (60  Ala.  504),  140. 
Dulany  v.  Tilghman  (6  G.  &  J.  461),  248. 
Dunbar  V.  Creditors  (2  La.  Ann.  727), 

204. 
Duncan  v.  Garney  (108  Ind.  579).  205. 
Duncan  v.  Stewart  (25  Ala.  408,  60  Am. 

Dae.  527),  16. 
Dunfee  v.  Childs  (45  W.  Va.  155),  19,  148. 
Dunn  V.  Frazler  (8  Blackf.  432),  162,  168. 
Dunning  V.  Ocean  Nat.  Bank   (61  N.  Y. 

497,19  Am.  Rep.  293),  40. 
Durham's  Estate  (49  Cal.  491),  39. 
Duval's  Heir's  v.  P.   and  M.  Bank   (10 

Ala.  636),  71. 
Duxbury  V.  Dohle  (78  Minn.  427,79  Am. 

St.  Rep.  408),  12. 
Dwight  V.  BUckmar  (2  Mich.   330,  57 

Am.  Dec.  130;.  119. 
Dyerv.  Leach  (91  Cal.  191,  25  Am.  St. 

Bep.  171),  32. 


E. 


Eads  V.  Stephens  (63  Mo.  99).  115. 
Eastman  v.  Dearborn  (63  N.  H.  366),  13. 
Eberstein  v.  Oswalt  (47  Mich.  254),   129. 
Ebling  V.  Dreyer  (149  N.   Y.   460),   266, 

268,  269. 
Eccles  V.  TImmons  (95  N.  C.  540),  164. 
Eddy  V.  Coldwell  (23  Or.  163,  37  Am.  St. 

Rep.  672),  97. 
Edmondson  V.  Leach    (56Ga.  461),   125. 
Edmunds  v.    Crenshaw    (1   McCord's 

Cll.  252),  120. 
Edmunds  v.  Rockwell  (125  Mass.  363), 

48. 
Edney  v.  Edney  (80  N.  C.  81),  163. 
Edwards  v.  Moore  (99  N.  C.  1).  81. 
Edwards  v.  Pop-s  (3  Scam.  465),  279. 
Egan  V.  Grece  (79  Mich.  629),  82, 184. 
Elam  T.  Donald  (58  Tex.  316),  207. 
Ellet  V.  Paxson  (2  W.  &  S.  418),  116. 
Ellis,  Ex  parte  (37  Tex.  Cr.  Rep.  539,  66 

Am.  St.  Rep.  831),  26. 
Ellis  V.  Eilis  (84  Ala.  348),  205. 
Elliott  V.  Knott  (14  Md.  121,  74  Am.  Dec. 

619),  98,  105. 
Ellsworthv.  Hall  (49  Mich.  407), 62. 
Embury  v.  Connor  (3  N.  Y.  511,  53  Am. 

Dec.  235),  179. 
Emery  V.  Vroman  (19  Wis.  689,  88  Am. 

Dec.  726),  90,  144. 
Emery  County  v.  Brieson  (14  Utah,  3'.;8, 

60  Am.  St.  Rep.  893),  96. 
Enimoua  v.  Gordon  (140  Mo.  490,  62  Am. 

St.  Rop.  734),  38. 
England  v.  Clatk  (4  Seam.  486),  162. 
Erwin  V.  Dundas  (4  How.  58),  99. 
Estop  V.  Hutchman  (14  S.  &  R.  435),  266. 
Etbell  V.  Nichols  (1  Idaho  [N-  S.],  741), 

54. 
Evans  v.  Chew  (71  Pa.  St.  47),  41. 
Evans  V.  John^on    (33  W.    Va.   299,    45 

Am.  St.  Rep.  912),  14. 
Evans  V.  Matthews  (8  Ala.  99),  43. 
Evans  v.  Robbersou  (92  Mo.  192,  1  Am. 

St.  Rep.  701),  108. 
Evans  v.  Snyder  (64  Mo.  517),  41,  204. 
Evans  v.  Weli'onrne    (74  Tex.  530,  15 

Ain.  St.  Rep.  858),  135. 
Ewards  v.  Halbe  t  (64  Tex.  667) ,  87. 
Ewell  v.  Daggs  (108  U.  S.  151),  252. 
Ewing  V.  Higby  (7  Ohio,  pt.  1,  p.  198,  28 

Am.  Dec.  633),  71, 147. 
Exchnnge  Bank  v.  Clement   (109  Ala. 

280),  13. 
Exum  V.  Baker  (118  N.  C.  545),  152. 


302 


TABLE  OF  CASES  CITED. 


Fallon  V.  Wortbington  (13  Colo.  559,  16 

Am.  St.  Rep.  231),  135, 171. 
Falls  V.  Wright  (55  Atk.  562,  29  Am.  St. 

Rep.  78),  19. 
Fambro  v.  Gantt  (12  Ala.  298),  116. 
Farmers'  Bank  v.  Martin  (7  Md.  342,  61 

Am.  Dec.  350),  164. 
Farmers' Bank  V.  Merchant  (13  How. 

Pr.  10),  149. 
Farmers'  Bank  v.  Peters  (ISBush,  591), 

164. 
Farmers'  L.  Co.  v.  Oregon  P.  K.  R.  Co. 

(28  Or.  44),  89. 
Farmers'  N.  B.  v.  Gates  (33  Or.   388,   72 

Am.  St.  Rep.  724).  23. 
Farnum  v.  Perry  (43  Vt.  473),  121. 
Farrar  v.  Dean  (24  Mo.  16),  54. 
Farrington  v.  King  (1  B -Mdf.  182),  79. 
Farrior  V.  Houston  (100  N.  C.  369,  6  Am. 

St.  Rep.  597),  104. 
Faulkner. /rt  re  (57   Hun,  586,  10  N.   Y. 

Supp.  325),  68. 
Faull  V.  Cooke  (19  Or.  455,  20  Am.   St. 

Rep.  836),  126. 
Felch  V.  Gllman  (22  Vt.  39),  179. 
Fell  V.  Young  (63  111.  106).  33. 
Feller  V.  Clark  (36  Minn.  338,  340),  244. 
Ferguson  v.  Scoti  (49  Miss.  50),  48. 
Ferguson    v.    Templeton    (Tex.     Civ. 

App.,  32  8.  W.  Rep.  148),  144. 
Ferguson  v.  Williams  (58  Iowa,  717), 

254. 
Field,  Matter  of  (131  N.  Y.  184),  269. 
Field  V.  Peebles  (180  111.  376),  34. 
Field  V.  Schleffelin  (7  Johns.  Cb.  150,  11 

Am.  Dec.  441),. 36,  37. 
Field'sHeirs  V.  Goldsby  (28  Ala.   224), 

71. 
Finch  V.  Edmonson  (9  Tex.  504),  54. 
Finlayson  V.  Peterson   (5  N.  D.   587,57 

Am.  St.  Kep.  584),  247. 
Finleyv.  Gaut  (8  Buxt.  148),  K^. 
First  N.  B.  V.  Shuler  (153  N.    Y.    163,   60 

Am.  St.  Rep.  601),  15. 
Fishery.  Hassett  (9  heigh,  119,  .33  Am. 

Dec.  227),  18. 
Fisher  v.  Bush  (1.33  Ind.  315),  169. 
Fisk  V.  Noi  vel  (9  Tex.  13,  58  Am.  Dec. 

128),  16,27. 
FIsk  V.  Kellogs  (3  Or.  603),  73. 
Fitch  V.  Miller  (20  Ciil.  352),  56,63,  64,  69. 
Fitch  V.  Wiibeck  (2  Barb.  Ch.  161),  51. 
Fltzpatrlck  V.  Peabody  (51  Vt   195),   87. 
Flanders  v.  Flanders  (23  Ga.  249,68  Am. 

Dec.  523),  121. 


Flatt  V.  Stalder  (16  Lea,  371),  128. 
Fleming  v.  Bale  (23  Kan.  88),  80. 
Fleming  v.  Powell  (2  Tfx.  225),  149. 
Fletcher  v.  McArthur  (68  Fed.  Rep.  65, 

15  C.  C.  A.  224,  37  U.  S.  App.  69),  11. 
Fletcher  v.  Peck  (6  Cranch,  137),  252. 
Flinn  V.  Chase  (4  Deu.  90),  27. 
Flora  V.  Naney  (126  111.  45) ,  125. 
Florentine  v.  Barton  (2  Wall.  210).  279. 
Fogg  V.  Fogg  (40  K.  II.  2e2,  77  Am.  Dec. 

415),  127. 
Foley  V.  Kane  (53  Iowa,  64),  131. 
Foley  V.  Mutual  L.  I.  Co.  (138  N.  Y.  333, 

34  Am.  St.  Rep.  436),  181. 
Forbes  v.  Hulsey  (26  N.  Y.  53),  57. 
Ford  V.  Mills  (46  La.  Ann.  331),  81. 
Ford  V.  Walsworth  (15  Wend.  450),  57, 

63. 
Forman  v.  Hunt  (3  Dana,  621),  2. 
Forsterv.  Forster  (129  Mass.  559),   251. 
Foster  V.  Birch  (14  Ind.  445) ,  92. 
Foster  V.  Essex   Bank    (16   Mass.  245), 

254. 
Foster  V.  Mabe  (4  Ala.  402,  37  Aih.  Dec. 

749),  115. 
Fowier  V.  Poor  (93  N.  C.  466),  87. 
Fox,  In  re  (52  N.   Y.  530,  11  Am.    Rep. 

751),  38. 
Foxworth  V.  White  (72  Ala.  224),  82. 
France  v.  Haynes  (67  Iowa,  139),  180. 
Francis  V.  Daley  (160  Miss.  381),  29. 
Frazier  v.  Steenrod  (7  Iowa,  339,  71  Am. 

Dec.  447),  75. 
Frederick  v.  Pacquette  (19  Wis. 541),  51. 
Fret-land  v.  Williams  (131  U.  S.  415),  252. 
Freeman  v.  Alderson  (119  U.  S.  285),  11. 
French  v.  Currier  (47  N.  U.  88),  41. 
.French  V.Edwards  (5  Saw.   C.   C.  266), 

95.  r 

French  v.  Hoyt  (6  N.  H.  370,25  Am.  Dec. 

464),  72. 
Friedlanderv.  Fenton    (180  11!.   312,  72 

Am.  St.  Rep.  207),  104. 
Friedman  v.  Shamblin  (117  Ala.  454),  71, 

78. 
Frluk  V.  Roe  (70  Cal.  296),  105. 
Fronberger  v.  Lewis  (70  N.  C.  456),  120. 
Frost  V.  At  wood  (73  .Mich.  67, 16  Am.  St. 

Rep.  560),  39,  41,  162,  188,  205. 
Frost  V.  Yonker's  S.   B.   (70  N.  Y.   560), 

95. 
Fiyerv.  Rockefeller  (63  N.  Y.  298),  164. 
Fuller  V.  Little  (59  (ia.  338),  121. 
Fullarton  V.  McArthur   (1  Grunt's  Cas. 

232) ,  279. 
Fulton  V.  Roberts  (113  S.  C.  44),  126. 


303 


TABLE  OF  CASES  CITED. 


Furbish  V.Greene  (108  Pa.  St.  503),  131. 
Furman  v.  Furman  (45  N.  J.  Eq.  734),  84. 
Fainesa  v.  Kwiiig  (2  Barr,  479),  172. 

G. 

Gage  V.  Schroder  (73  111.  44),  88. 
Gager  v.  Henry  (5  Saw.  C.  C.  237),  71. 
G  lines  V.  DeLi  Croix  (6  Wall.  720),  17, 

116. 
Gaines  v.  Fenter  (82  Mo.  497) ,  41. 
(Jaines  V.  Kennedy  (53  Miss.  103),  204. 
(i.iinesv.New   Orleans   (6   Wall.  64'2), 

147. 
G  ilpin  V.  Pagp(I  Sawy.  309,  18  Wall.  3:0, 

1  Cent.  L.J.  491),  25. 
Gambell-v .  Tnppe  (75  Md.  252,  32  Am. 

St.  Rep.  388),  40. 
G<nnett  V.  Leonard    (47  Mo.  205),  269, 

278,  289. 
Gardner  v.  Mawney  (95  III.  552) ,  80. 
Gardner  V.  Mobile,  etc.,  R.  R.  Co.   (102 

Ala.  635,48  Am.  St.  Rep.  84),  97,  102. 
Garner  V.  Tucker  (61  Mo.  427),  139,   154. 
Gay,  Petition  of  (6  Mass.  419).  36. 
Gay  V.  Grant  (101  N.  C.  206),  39,  41. 
Gay  V.  Minot  (3  Gush.  352),  26. 
Gelstrop  V.  Moore  (26  Miss.  206,  59  Am. 

Dec.  254),  41. 
Geotry  v.  Callahan  (89  N.  C.  448),  134. 
George  v.  Watson  (19  Tex.  S54),  71. 
Gerber  V.  Upton  (123  Mich.  605),  207. 
Gerhou  V.  Bestir  k  (15  La.  Ann.  697),  108. 
German  N.  Bank  v.  Kautter   (.55  Neb. 

103.  70  Am.  St.  Rep.  371),  12. 
Gerrard  v.  Johnson  (12  Ind.  636),  .83. 
Gerrard  v.  Thompson  (12  Ind.  636),  72. 
Gibbs  V.Davis  (168  111.205),  152. 
Gibbs  V.  Sbaw  (17  Wis.  201,  84  Am.  Dec. 

737),  33,73. 
Gibson  V.  Herriott  (55  Aik.  S5,  29  Am. 

St,  Rep.  17),  121. 
Gib«on  V.  Lyon  (115  U.  S.  439),  87, 124. 
G'bson  V.  Roll  (27  III.  90),  57,  75,  77. 
Gibson  V.  Roll  (30  111.  172,  83  Am.    Dec. 

181),  27. 
Giddingsv.  Steele  (28  Tex.  750,  91  Am. 

Dec.  336),  79. 
Gilbert  V.  Cooley   (Walker's  Ch.  494), 

191. 
Gilbert  v.  Hoffman  (2  Watts,  66,  26  Am. 

Dec.  103),  207. 
Gilbert  v.  Watts-De  Golver  Co.  (169  111. 

129,  61  Am.  St.  Rep.  151),  114,  116. 
Gilchist  V.  ShackfJford  (72  Ala.   7),  61. 
Giles  V.  Palmer  (4  Jones,  386,  69  Am. 
Dec.  756),  125. 


Giles  V.  Pratt  (IHill  [S.  C.],239,  26  Am. 

Dec.  170),  134. 
GiUev.  Emmons  (58  Kan.    118,  62  Am. 

St.  Rep.  609),  20. 
Gillespie  V.  Swltzer  (43  Neb.  772), 97. 
Oilman  v.  Tucker  (128  N.  Y.  190,  26  Am. 

St.  Rep.  464),  170. 
Girard  L.  las.  Co.  v.  F.  &  M.  Bank    (57 

Pa.  St.  388),  2. 
Givens  V.  Carroll  (40  S.  C.  413,   42  Am. 

St.  Rep.  889),  135,191. 
Glasgow  V.  McKinnon  (79  Tex.  116),  147. 
Glass  V.  Greathouse  (20  Ohio,  503),  120. 
Glenn  v.  Wooten  (3  Md.  Ch.  514),  107. 
Globe  L.  &  T.  Co.  v.  Wood  (58  Neb.  395) , 

106. 
Glover  V.  Ruffln  (6  Ohio,  255),  154. 
Godbold  V.  Lambert  (8  Rich.  Eq.  155,  70 

Am.  Dee.  192),  97. 
Goebel  v.  Iffla  (111  N.  Y.  171),  24. 
Goforth  v.   Longworth  (4  Ohio,  139, 19 

Am.  Dec.  588),  41. 
Going  V.  Emery  (16  Pick.   107,  26  Am. 

Dec.  645),  .39. 
Goodv.  Norley  (28  Iowa,  188),  72,  74,  243. 
Goodbody  V.  Goodbody  (95  111.  466),  88. 
Goode  V.  Crow  (51  Mo.  212),  161. 
Goodman  v.  Winter  (64  Ala.  410,  38  Am. 

Rep.  13),  182,206. 
Goodrich  v.  Tendleton   (4  Johns.  Ch. 

549),  17. 
Goodwin  v.  Jones  (3  Mass.  618,  3  Am. 

Dec.  173),  35. 
Goodwin  v.  Sims  (86  Ala.  105,  11  Am.  St. 

Rep.  21),  81. 
Gordon  V.  Bodwell   (59  Kan.  51,  68  Am. 

St.  Rep.  341),  102. 
Gordon  v.  Camp   (3  Pa.  St.  349,  45  Am. 

Dec.  647),  no. 
Gordon  v.  G  Ifoll  (99  U.  S.  168).  105. 
Gordon  v.  Gordon  (.55  N.  H.  399),  79,  82. 
Gordon  v.  Howell  (36  Ark.  381),  43. 
Gordon  v.  San   Diego   (101   Cal.  522,  40 

Am.  St.  Rep.  73),  248. 
G  )ss  v.Board  of  Commrs.(4  Colo.468),12 
Goss  V.  Meadors  (78  Ind.  528),  148. 
Gossam  v.  McFarran  (79  Ky .  236) ,  291. 
Gourd'.n  v.   Davis   (2  Rich.  481,  45  Am. 

Dec.  745),  154. 
Gowan  v.  Jones  (10  S.  &  M.  164) ,  140. 
Gowdy  V.  Sandus  (88  Ky.  846),  101. 
Graham  v.  Bleakie  (2  Daly,  65).  164. 
Graham  V.  Hawkins  (38  Tex.  628).  83. 
Graham  V.  Lynn   (4  B.  Men.  17,  39  Am. 

Dec.  493),  99. 
Grant  V.  Hill  (Tex.  Civ.  App.,  44  S.  W. 
Rep.  1027),  58. 


304 


TABLE  OF  CASES  CITED. 


Grant  v.  Loyd  (12  S.  &  M.  191),  204,  207. 

Gray  v.  Hawee  (8  Cal.  562),  6. 

Grayv.  Ward    (Tenn.  CH.    App.,   52  S. 

W.  Rep.  1028),  129. 
Grayson  v.  Weddle  (63  Mo.  52.3),  63,  69, 

80,123,  141,217. 
Great  VV.  M.  Oo.  v.  Woodman  of  A.  M. 

Co.  (12  Colo.  46,13  Am.  St.  Rep.  204),  9. 
Greeley  v.  De  Cottts  (24  Fla.  475),  21tj. 
Green  v.  Abraham  (4a  Ark.  420),  248. 
Green  v.  Holt  (76  Mo.  677),  120,  128. 
Green  v.   Sirgeaut   (23  Vt.  466, 56  Am. 

Dec.  88),  120. 
Greenman  v.  Harvey  (59111.  386),  73. 
Greenough  v.  Greenougb   (U   l^a.  St. 

488).  2:«. 
Greenough  v.  Small   (137  Pa.  St.  132,  21 

Am.  St.  Kep.  869),  140,  149. 
Gieer  V.  Anderson  (62  Aik.  213),  140. 
Greer  v.  Wintersmiih  (85  Ky.  516,  7  Am. 

St.  Rep.  6ia),  105. 
Gregory  v.  McPuerson  (13  Cal.  562),  51, 

65,  63. 
Gregory  v.  Rlioden  (29  S.  C.  90),  48. 
Gregory  v.  Tabor  (19  Cal.    397,  7rf  Am. 

Dee.  219),  56,63,68. 
Gridley  v.  I'nillips  (.5  Kan.  349),  161,  152. 
Grlf-r  s  Appeal  (101  Pa.  St.  412),  53. 
Gr  fliQ  V.   Uannmgliam    (20Gratt.   109), 

229. 
Griffith  V.  Fowler  (18  Vt.  .394),  2. 
Griffith  V.  Fro/.ier  (8  Criiich,  24),  16,  17, 

27. 
Griffith  y.  M  Iwaukee  H.   Co.  (92  Iowa, 

634,54  Am.  St.  Rep.  57.^),  10,25,  104. 
GrigQon's  Lessee  v.  Astor  (2  How.  [U. 

S.]  339),<y.i,  7U. 
Grimes  v.  Doe  (8  Hlackf .  371),  229. 
Grimes  v.  Norris   (6  Cal.   621,  bSAm. 

Dec.  545).  15. 
Grimes  V.  Pennsylvania  R.  It.  Co.  (189 

Pa.  61C,  66  Am.  St.  Rep.  83u),  36. 
Grimes  v.  Taft  (99  N.  C.  193) ,  133. 
Griswold  V.  DIgelow  (6  Conn.  259),  155. 
Groff  V.  .Jones  (6  Wend.  622,  22  Am.  St. 

Dec.  545),  124. 
Grogan  V.  Sjin   Francisco   (18  Cal.  5i'0), 

252. 
Gross  V.  Mortgage   Co.   (108   U.  S.  488), 

252. 
Guo  V.  Jones  f25  Neb.  634),  95. 
Guerrerov.  Ballenno  (48   Cal.  119),  120. 
<;uUey  v.  Prather  (7  Hush,  167),  41. 
Guoz  v.  Heffiier  (33  Minn.  215,  22  N.  W. 

Rep.  396),  6. 
Girney's  Succession  (14  La.  Ann.  632), 

79. 


Guy  V.  Doak  (47  Kan.  236),  21. 
Guy  v.  PiersoQ  (21  lad.  18),  57. 
Gwin  V.  McCarroll  (1  S.  &  M.  351),  33. 
Gwlnn  V.  Williams  (.30  lad.  374),  laa. 


H. 


Haberling  v.  Jagger(47  ^Ilnn.  70,  28  Am. 

St.  Rep.  331),  134. 
Hacker  V.  White  (22  Wash.  415,  79  Am. 

St.  Rep.  945),  135. 
Hagthorp  v.   Noale   (7  Gill  &   J.  13,  26 

Am.  Dec.  594),  36. 
Halcombe  v.    Loudermilk    (3   Jones, 

491),  168,  169. 
Hall  V.  Armor  (68  Ga.  449),  43. 
Hall  V.  Callahan  (66  Mo.  316),  43. 
Hail  V.  Chapman  (H5  Ala.  558),  54,  65. 
Hall  V.  Klezpig  (99  Mo.  S3),  218. 
Hallv.  Lackmoad   (50  Aik.   113,7  Am. 

St.  Rep.  84),  102. 
Hall  V.  Rdy  (40  Vt.  576,  94  Am.  Dec.  449), 

115. 
Hall  V.  Stevenson  (19  Or.  153,  20  Am.  St. 

Rep.  803),  105. 
Hallv.  Thayer  (105  Mass.  219,   7  Am. 

Rep.  513),  26. 
Halleck  v.  Guy  (9  Cal,  197,  70  Am.  Dec. 

643),  2,  147. 
Halleck  v.  Moss  (17  Cal.  339),  72,  75. 
Halsey  V.  JoueS  (86  Tex.  487),  170. 
H^tmbliu  V.  Waruecke  (81  Tex.  93),  119, 

121, 128. 
Hamtr  V.  McKlnley,  etc.,   Co.    (52  Neb. 

705),  109. 
Hamiel  V.  Donnelly(75  Iowa,  93),  57,  91, 

92,  93. 
Hamilton  v.   Hamilton   (4    JJarr,  193), 

172. 
Hamilton  v.  Lockhart   (41    Miss.  460) 

72,  8'.). 
Hammaun  v.  Mink  (99  lad.  279),  153. 
Hammond  v.   ("ailleaud   (111  Cal.  2U6), 

52  Am.  St.  Rep.  1<;7),  143. 
Haiiiiiiond  V.    Chamberliiin     (58  Neb. 

445,  76  Am.  St.  Rep.  106),  163. 
Hauby   v.    Tutkor   (23  Ga.   132,69  Am. 

Dec.  514),  115. 
Haudy  v.  Nooaao  (51  Ma?.  166),  173. 
Hanks  V.  Neal  (44  Mlas.  212),  26,  27,  1(8. 
Hannah  V.  Chase   (4  N.   D.  351,  6j  Am. 

St.  Rep.  686),  152. 
Hanson  v.   liigwaldson   (77  Minn.  633, 

77  Am.  St.  Rep.  692),  58. 
Hardy  V.  lieatty  (84  Tex.  562,  81  Am.  St. 

Rep.  80),  14. 
Ilargadiue  v.  Van  Horn  (72  Mo.  370)   12 


(20) 


305 


TABLE  OF  CASES  CITED. 


llarlan'9  Estate    (24  Cal.   182,  85  Am. 

Dec.  58),  17. 
Harlan  v.  Ilarlan  (U  Lea,  107),  104. 
Harriman'9  Heirs   v.  Janney   (31   La. 

Ann.  276),  132. 
Harrington  V.  O'Reilly  (9  S.  &  M.  216, 

48  Am.  Pec.  704),  98. 
Harris  v.  Corriell  (80  HI.  54),  94. 
Harris  v.  Daugherty  (74  Tex.  1,  15  Am. 

St.  Rep.  812),  21. 
Harris  V.  Lester  (80111.  307),  88. 
Harris  V.  Murray  (26  N.  Y.  574,  86  Am. 

Dec.  269),  126. 
Harris  v.  Shafer    (Tex.  Civ.  App.,21  S. 

S.  W.  Rep.  110),  139. 
Harrison  V.  Harrison    (106   N.    C.   282), 

73.  183. 
Harrison  v.  Ligner  (74  Tex.  86),  140. 
Harrison  V.  Maxwell  (2  N.  &McC.347, 

10  Am.  Dec.  611),  154. 
Harrison  v.  McHenry  (9  Ga.  164,  52  Am. 

Dec.  435),  121. 
Hart  V.  Brown  (77  111.  226),  192. 
Hartv.  Henderson  (17  Micb.  218),  229. 
Hart  V.  Hyde  (5  Vt.  .328),  126. 
Hartley  v.  Brown  (46  Cal.  201)  44. 
Hartley  v.  Croze  (38  Minn.  328),  108. 
Hartman  v.  Schultz,  (101  111.  437),  45. 
Hartwell  v.  McDonald  (69  111.    193),  127. 
Hasbrouck  v.  Milwaukee  (13  Wis.  50,  80 

Am.  Dec.  718),  250. 
Haskins  v.  Wallet  (63  Tex.  213),  104, 154. 
Hastings  V.  Johnson  (1   Nev.  613),  124. 
Hathway   v.   Howell     (54    N.    Y.  97,   6 

Thomp.  &C.  458,4  Hun,  270),  90. 
Hatch  V.  Kelly  (63  N.  H.  29),  48. 
Hatcher  v.  Briggs  (6  Or.  31),  204. 
Hatcher  v.  Clifton  (33  Ala.  301),  79. 
Haug  V.  Prlmeau    (98  Mich.   91),  60,  51. 
Havemeyer  v.  Superior  Court  (84  Cal. 

327,  18  Am.  St.  Rep.  192),  21. 
Havens  v.   Pope  (Kan.  App.,  62   Pac. 

Rep.  538),  142. 
Havens  V.  Sherman  (42  Barb.  636),  74, 

77. 
Hawkins  v.  Hawkins   (28  Ind.  66),  140, 

147. 
Hawkins  v.  Miller  (26  Ind.  173),  168. 
Haws  V.  Clark  (37  Iowa,  355),  76. 
Hayes  v.  Jackson  (6  Mass.  152),  35. 
Hayes  v.  McNealy  (16  Fla.  409),  61. 
Hayes  v.  N.  Y.  M.  Co.  (2  Colo.  273),  148. 
Haynes  v.  Meeks  (10  Cal.   110,70  Am. 

Dec.  703),  17,64,  204. 
Haynes  v.  Meeks  (20  Cal.  288),  55,  69. 
Haywood  V.  Collins  (60  111.  328),  12. 


Hazel  v.Lydea   (51  Kan.  233,  37  Am.  St. 

Rep.  273),  171,  18.<. 
Hazelton  v.   Borgardus  (8  Wash.  102), 

58. 
Head  v.  Daniels  (38  Kan.  11),  151. 
Heath  V.  Wells  (5  Pick.  139,  16  Am.  Dec. 

383),  83. 
Hebbert  v.  Smith  (3  W.  C.  Rep.  446),  134. 
Hedges  V.  Mace  (72  111.  472),  87. 
Heick  V.   Reinhimer  (105  N.  Y.  470),  24. 
Heller  v.  Cohen  (154  N.  Y.  299),  164. 
Helmer  v.  Rehm  (14  Neb.  219),  107. 
Helms  V.  Chadbourne    (45  Wis.   60),  73. 
Helms  V.  Love  (41  Ind.  210) ,  77. 
Hemmy  v.  Hawkins   (102   Wis.    56,    72 

Am.  St.  Rep.  863),  36.  39. 
Henderson  v.  Hays  (41  N.  J.  Law,  3S7), 

108. 
Henderson  V.  Herrod  (23  Miss.  434),  140. 
Henderson  v.  Lindley   (75  Tex.  185),  27. 
Henderson  v.   Overton  (2  Yerg.  394,  24 

Am.  Dec.  492),  167. 
Hendrick  v.  Davis   (27  Ga.  167,73  Am. 

Dec.  726),  108. 
Henry  v.  McKerlie  (78  Mo.  416),  142,  217. 
Hentig  V.  Pipher  (58  Kan.  788),  1H4. 
Herbert  v.  Herbert  (Breese,  354,  12  Am. 

Dec.  192),  43,269. 
Herden  V.  Oubre   (2  La.  Ann.   142),  171. 
Herdman  v.  Short  (18  111.  59),  75. 
Hermann  v.  Fontelieu  (29  La.  Ann.  502), 

106. 
Hermann  v.  Likens  (90  Tex.  448),  157. 
Hernandez  v.  Drake  (81  111.  34),  103. 
Herndon  v.  Rice  (21  Tex.  457),  1G9. 
Herrick  v.  Ammeimau  (32  Minn.  544), 

85,  108. 
Herrick  v.  Morrill  (37  Minn.  250,  5  Am. 

St.  Rep.  841),  156,157. 
Herring  v.  Outlaw  (70  N.  C.  .334),  229. 
Herron  V.  Marshall  (5  Humph.   443,  42 

Am.  Dec.  444),  36. 
Hervey  V.  Hervey(56N.  J.  Eq.),  175,  13. 
Herzberg  v.  Hollis  (119  Ala.  496).  97. 
Heyman  v.  Babcock  (30  Cal.  367),  94. 
Hlbbard  v.  Smith  (50  Cal.  511),  104. 
Hickenbotham  v.  Blackledge    (54    111. 

316),  73. 
Hicks  V.  Blakeraan  (74  Miss.  459),  140. 
Hicks  V.  Weens  (14  Lh.  Ann.  629),  121. 
Hickson  V.  Rucker  (77  Va.  135) ,  164. 
Higgins  V.   Bordages   (88  Tex.  458,   53 

Am.  St.  Rep.  770),  8. 
Higgins  V.  Reed  (48  Kan.  272),  88,92. 139. 
High  V.  Nelms  (14  Ala.  .350,  48  Am.  Dec. 
103) ,  130. 


306 


TABLE  OF  CASES  CITED. 


Hill  V.  BillingFly  (53  Miss.  Ill),  205. 
Hill  V.  Den  (54  Cal.  6),  38. 
Hill  V.  Lancaster  (88  Ky.  338) ,  liT. 
Hillv.    Reynolds  (93  Me.  25,  71  Am.   St. 

Rep.  329),  152. 
Hill  V.  Town  of  Sunderland  (3  Vt.  507), 

228. 
Hill  V.  Wall  (66  Cal.  130) ,  85. 
Hilson  V.  Kitchens  (107  Ga.  230,  73  Am. 

St.  Rep.  119),  26. 
Hindman  t.  I'iper  (.50  Mo.  294),  289. 
Hlnd'8  Heirs  V.Scott   (11  Pa.  St.   19,  61 

Am.  Dec.  606),  154. 
Hinson  v.  Hinson  (5  Sneed,  322,  73  Am. 

Dec.  129),  108. 
Hinton  v.  P»nn   M.  L.  I.  Co.  (126  N.  C. 

18,  78  Am.  St.  Rep.  636) ,  10. 
Hitchcock  V.  Danbury,  tt^.,  R.  R.  Co. 

(25  Conn.  516),  179. 
Hit*  V.  Tdylor  (3  A.    K.  Marsh.  353),  41. 
Hoaglandv.  Hoagland  (19  Utah,  103), 32. 
Hobart  v.  Upton  (2  Saw.  C.  C.  302),  108. 
Hobby  V.  Bunch    (83  Gd.  1,  20  Am.   St. 

Rep.  301),  32. 
Hobson  V.  Ewan  (62  III.  149).  146. 
Hobsou  V.  McCambridge  (130  111.  367), 

100. 
Hockett  V.  Alston  (Ind.  T.,  .58  S.  \V.  Rep. 

675),  1.58. 
Hodgdon  v.   Southern   P.  Ry.   Co.    (75 

Cal.  642),  269. 
Hodge  V.   Fabian  (31  S.  C.    212,17  Am. 

St.  Rep.  25),  82. 
Hoffmtjn  V.  Anthony  (75  Am.  Dec.    704 

to  713),  108. 
Hoffman  v.  Beard  (.32  Mich.  218),  48. 
Hoffman  v.  Buachman   (95  Mich.  538), 

131. 
Hoffman  v.  Strohecker  (7  Watts,  86,  32 

Am.  Dec.  740),  95. 
Hoflmire  v.  Holcomb  (17  Kan.  378),  180. 
Ilogue  V.  Uorbett   (1.56111.   540,47   Am. 

St.  Rep.  232),  12. 
Holbert  V.   Carroll  (Tex.  Civ.   App.,  25 

8.  W.  Rep.  1102),  11:3. 
Holman  v.  Gill  (107  III.  467),  134,  153. 
ilolman  v.  McKlnney   (3  J.  J.  Marsh. 

246),, 39. 
llolman'8  Heirs  v.  Bank  of  Norfolk  (12 

Ala.  369,  415),  269,  271,277. 
Holmes  V.  Jordan  (163  Mass.  137),  104. 
Holmes  v.  Shafer  (78  111.  578),  162,  164. 
Holmes  v.  Taylor  (48  Ind.  169),  109. 
Holyoke  v.    Haeklns  (5  Pick.  20,  and  9 

Pick.  259,  16  Am.  Dec.  372),  17. 
Hr>pe  y.   JSIaIr  (105  Mu.  85,  24  Am.  St. 
Rep.  366),  7. 


Hopkins  V.  Mason  (61  Barb.  469).  229. 
Hoppe  V.  Fountain  (104  Cal.  94),  23. 
Hord  V.  Hord's  Admr.  (41  Ala.  590),  57. 
Home  V.  Nugent  (74  Miss.  102),  134. 
Horner,  Appeal  of  (56  Pa.  St.  405),  43. 
Horton  V.  Jack  (115  CmI.  29),  140. 
Hoskir.s  v.  Helm  (4  Litt.   .309,  14  Am. 

Dec.  133),  97. 
Hofkinson    v.  Jacquess   (54  III.   App. 

69),  122. 
HotchkiSB  V.  Cutting  (14  Minn.  537),  143. 
HouRh  V.  Doyle  (8  Blackf .  300),  73. 
Houser  V.  Smith  (19  Ut»h,  150).  19. 
Housley  v.  Lindsey  (IflHeij-k.  651),  164. 
HoustoQ  V.  Bryan  (78  Ga.  181,  6  Am.  St. 

Rep.  262).  121. 
Houx  V.  County  of  Bates  (61  Mo.  391), 

217. 
Hovey  v.  Elliott  (145  N.  Y.  141, 167  U.  S. 

414),  28. 
Howard,  etc.,  I.  Co.,  Ex  parte  (119  Ala. 

484,  72  Am.  St.  Rep.  928),  25. 
Howard  v.  Moore  (2  Mich.  226),  149. 
Howard  v.  North    (5  Tex.   290,51    Am. 

Dec.  769),  108,  111,  154,  168,  170,  190. 
Howbert  V.  Heyle  (47  Kan.  68). 60,  88,92 
Howe  V.  McGivern  (25  Wis.  525),  47,  128. 
Howell  V.  Tyler  (91  N.  C.  207),  121. 
Hoyt  V.  Sprague  (103  U.  S.  613),  266. 
Hnbermann  v.  Evans   (46  Neb.  7^4),  59. 
Hudepohl  V.   Liberty  Hill   W.  Co.  (92 
Cal.  688,  28  Am.  St.  Rep.  149),  131,135. 
Hudgens  v.  Jackson  (51  Ala.  514),  108, 

148. 
Hudgin  V.  Hudgin  (6  Graft.  320,  52  Am. 

Dec.  124),  167,  197,204. 
Uuebler  V.  Smith  (62  Conn.  183,  36  Am. 

St.  Rep.  .337),  137. 
Huffman  v.  Gaines  (47  Ark.  227),  171. 
Huggins  V.  Ketchum  (4  Dev.  &  B.  414), 

102. 
Hughes  V.  Tabb  (78  Iowa,  315) ,  .39. 
Hughes  V.  Watt  (2t!Ark.  228),  lO'i. 
Hugo  V.  Mill*  r  (50  Minn.  105).  145. 
Hull  V.  Claik  (14  Sin.  AM.  187),  42. 
Hull  V.  Hull  (35  W.    Va.   155,  29  Am.  St. 

Rep.  800),  191,205. 
Humphrey  v.  Beeson  (1  G.  Greene,  199, 

48  Am.  Dee.  370),  164. 
Hunt   V.  Loucks  (3;j    Cal.   372,  99  Am. 

Dec.  404),  104,  134. 
Hunter  v.  Hutiter  (.59  S.    C.  882,  79  Am. 

St.  Rep.  845),  79,  206. 
Hunter  v.  Roach  (95  N.  C.  106),  104. 
Hunting  v.  Walter  (33  Md.  60),  163. 
Hurley  v.  Harnard  (48  Tex.  83),. 34. 
Hurse  V.  Liford  (U  Belsk.  622),  100, 


307 


TA15LE  OF  CASES  CITED. 


LInse  V.   DHn   (86  Oil.  390,  2()  Am.  St. 

Rep.  232),.^S,;W.  41,208. 
Hutchison  V.  t'assidy  (4(>  Mo.  4:!1),  llfi. 
Hu'Chinson  v.  SUelley  (138  Mo.  400),  70, 

73,  79. 
Hutton  V.  Williams  (35  Ala.  .W^,  76  Am. 

Dec  297),  2. 


I. 


413), 


liamsv.  Root  (22  Tex.  Civ.  App 

31,  32. 
Ibelhelmerv.  Chapman  (32  Ala.  C76),54. 
Illinois,  ttc,  S.  J5.V.  Pttcifli!  Ily.   Co. 

(115Cal.285),20. 
Imboff  V.  Llp«  (162  111.  282),  126. 
IngersoU  V.  Ingersoll  (54  Tex.  15.=>),73. 
IngersoU  V.  Mangam   (84  X.  Y.  62:^),   73. 
Israel  v.  Arthur  (7  Colo.  .5) ,  230. 
In-jnrance  Company  v.  IJaugs  (103  U.  S. 

435),  10. 
Ions  V.  Harbison  (112  Cal.   260),   45,  83, 

128,  176. 
Irwin  V.  Scribner  (18  Cal.  4P9),  1«. 
Islay  V.  Stewart  (4  D.  &I!.  100),  162. 
Ives  V.  Ashley  (97  Mass.  198),  12U. 


Jacks  V.  Johnston   (86  C  1.   384,  21  Am. 

St.  Rep.  50),  29. 
Jackou  v.Bowen  (7  Cnw.  1.H),191. 
Jackson  V.  (Jrawfoidi   (12   Weud.  533), 

57,  63,  69. 
Jack -on  V.  Lud^-lirg  (21  Wall.  633),  148. 
Jackson  v.  Miles  (94  Ga.  481,  98  Ga.  512), 

20. 
Jack'on  v.  Robinson  (4  Wend.  436) ,  51, 

56,  79. 
Jackson  v.  Spink  (50  II'.  404).  112. 
Jackson    v.    SummerviUe    (13    l*a 

359) ,  207. 
Jacksou  V.  Tofld  (1  Dutch.  121),  41. 
Jackson  v.  Virick  (  7  Cow.  2,38),  1.30. 
Jackson  v.  Will'ams  (50  Ga.  553),  89. 
Jacob's  Apoenl  (23  Pa.  St.  477),  144. 
Jaeoby  v.  McMahon    (174  Pa.  1.33),  182. 
Jaggersv.  Griftin  (43  aiiss.  134),  162. 
James  v.  Wilder  (25  Minn.  305),  117. 
Jane  V.  Boisgerard  (39  Miss.  796),  204. 
Jarboe  v.  Colvln  (4  Bush,  70),  88. 
Jarrett  v.  Tomllnson  (3  Watts  &  S.  114), 

130. 
Jarvis  v.  Russick  (12  Mo.  63)  110. 
Jefferson  v.  Curry  (71  Mo.  85),  113. 
Jelbe  v.  Goldsmith  (54  Ohio  St.    499,49 

Am.  St.  Rep.  730),  36. 


St 


Jelbs  V.  Barrett  (52  Miss.  315) ,  217. 
.Jenkins  V.  Young  (35  Hun,  569),  57,72. 
Jenkins  v.Y'oung  (43  Hun,  194),  78. 
Jennings  v.  Jenning's  Admr.   (9  Ala. 

291),  162. 
Jennings  v.  Kee  (5  Ind.  257),  173. 
Jennings  v.  Moses  (38  Ala.  402),  17. 
Jeters  v.  Caton  (6  Tex.  556) ,  111. 
Jett  V.  Sliion  (47  Ark.  373),  102. 
Jewett  V.  Iowa  L.  Co.  (64  Minn.  531,  58 

Am.  St.  Rep.  555),  14. 
Jochumscn    v.   Suffolk    Sav.   Bank   (3 

Allen,  87),  16. 
John's  Estate,  In  re  (18  X.  X.  Supp.  172, 

21  Civ.  Pro.  Rep.  .326),  57. 
Johns  V.  Rome  (5  Blacbf.  421),  217. 
Johnson  v.  Babcock  (8  Allen,  E83),  126. 
Johnson  v.  Bemis  (7  Xeb.  224),  113 
Johnson    v.  Branch   (9    S.   D.    116,   62 

Am.  St.  Rep.  857),  289. 
Johnson  v.  Caldwell  (38  Tex.  218),   170. 
Johnson  V.  Commrs.  (107  Ind.  15),  248. 
Johnson  V.  Cooper  (56  Miss.  608),  171. 
Johnson  v.  Fritz  (44  Pa.  St.  449),  171. 
Johns  jn  V.  Hines  (61  Md.  122),  149. 
Johnson  v.  Jones  (2  Xeb.  126),  62. 
Johnson  v.  Johason  (.30  111.  223),  75. 
.Johnson  v.  Powers  (21  Neb.  292),  21. 
Johnson  v.  Robertson  (34  Md.  165),  167. 
Jones  V.  Carter  (56  Mo.  403),  156. 
Jones  V.  Clark  (25  Graft.  632),  1.33. 
Jones  V.  Edwards  (78  Ky.  6),  .34. 
Jones  V.  Henry  (3  Litt.  435),  168. 
Jones  V.  Hess  (Tex.  Civ.  App.,  48  S.  W. 

Rep.  46),  104. 
Jones  v.  HoUingsworth  (10  Heisk.  652), 

140. 
J  11)63  v.  Kohomo  R.   Association    (77 

Ind.  340),  131. 
Jones  V.  Levy  (72  Ind.  586),  74. 
Jones  V.  Manley  (58  Mo.  5.59),  204. 
Jones  V.  Martin  (26  Tex.  57),  123. 
Jones  V.  Perry  (10  Yerg.  59,  30  Am.  Dec. 

430),  264. 
Junes  V.  Smith  (.55  Tex.  383),  191. 
Jones  V.  T  lylor  (7  Tex.  2^2,56  Am.  Dec. 

48),  154,  155. 
Jones  V.  Warnock  (07  Ga.  484),  162. 
Jones  V.  Woodstock  1.  Co.  (95  Ala.  551), 

44,  180,  183. 
Jordan  v.  Sayre  (29  Fla.  100),  191. 
Jonet  V.  Mortimer   (29  La.   Ann.   206), 

149,  205. 
Journeay  v.  Gibson  (56  Pa.  St.  57),  248. 
Judd  V.  Rogs  (146  III.  40) ,  82. 
Julian  V.  Bell  (26  Ind.  220,  fc9  Am.  Dec. 

460),  16S. 

308 


TABLE  OF  CASES  CITED. 


Kable  v.  Mitchell  (9  W.  Va.  492),  140. 
Kager  V.  Vieheiy  (61  Kan.   342,    78  Am. 

St.  Rep.  318),  30. 
Kanderv.  Mugele  (153  Pa.  49.'?),  52. 
Kane  V.  McCown  (55  Mo.  ISl),  113. 
Kane  V.  I'aul  (14  Pet.  39),  17. 
Karnes  v.  Harper  (48  111.527),  93. 
Karnsv.  Olney  (80  C<tl.  90,  13  Am.    St. 

Kep.  101),  173,  177. 
Kaupmau  V.  Nicewaner  (60  Neb.   208), 

148. 
Kearney  v.   Taylor    (15   How.    [U.   S.] 

494) ,  249. 
KeatCs  V.  Fowler's  DeTisees   (22  Arfe. 

483,485,  487),  244. 
Keeler  V.  Steed  (56  Conn.  .JOl,  7  Am.  St. 

Rep.  320),  26. 
Keerferv.  Force  (86lDd.  81),  212. 
Keith  V.  Keith  (lOt  III.  401).  154. 
Keller  V.  Wilson  (90  Ky.  3.ji)),  78. 
Kelley  V.  Kelley  (161  Mass.   Ill,  42  Am. 

St.  Uep.  3s'.i),95. 
Keiley  V.  Morgan  (3  Yerg.  441),  1.30. 
Keliey  v.  Frazier  (78  Mo.  HI),  47. 
Kempev.  I'mtard  (32  Miss.  .324).  174. 
Kendall  v.  Lawrence  (22  Pick.  540),  125. 
Kendall  v.  Miller  (9  Cal.  591),  42. 
Kendrkk  V.  Wheeler   (95T.X.247),   88, 

170. 
Kennard   v.   Louisiana  (92  U.  S.  480.  8 

Ch.  L.  N.  329),  253. 
Kennedy  ▼.    Clayton  (29  Ark.  270),  115. 
Kennedy  v.  Gaines  (51  Miss.  G25),  74. 
Kent  V.  Mansel  (101  Ala.  334),  81. 
Kenyon  v.  (juinn  (41  Cal.  325),  134. 
Kerlliki  v.  Keystone  L.  &  C.  Co.  (Tex. 

Civ.  App.,  21  S.  W.  Rep.  623),  157. 
Kertchem  v.  G^oige  (78  Cal.  .597),  f6. 
Keirsinger  v.    Wilson    (53   Ark.   400,  22 

Am.  8t.  Rep.  220),  47. 
Kezar  V.  Klklns  (.52  Vt.  119),  95. 
Klbby  V.  Ciiltwood  (4Mou.  91,  16  Am. 

Dec.  143),  269,  278. 
Kidwell  V.  liruuimagim   (32   Cul.  438), 

41. 
K'llough   V.  IIlDton  (20  Am.   St.   Rep. 

22  29),  48. 
Klllough  V.   Warren  (Tenn.  Cli.  App. , 

68  S.  W.   Rep.  898).  82. 
Kinculd  V.  Tate  (*)8  Ky.  392),  143. 
King  V.  Connell    flOS   Ala.  590,   53  Am. 

St.   Rep.  144),  18. 
King  V.  Gunnison  (4  Pa.  St.  171),  162. 
King  V.  Kent's  Hflra  (20  Ala.  542),  64. 
King  V.  Nunn  f!)9  Mich.  590;,bl,t2. 


Kingman  v.  Paulson    (126  Ind.  507,  22 

Am.  St.  Rep.  till),  32. 
Kingsbury  v.    Hutton  (140  111.  603),  95. 
Kingsbury  v.  Love  (95  Ga.  543) ,  128. 
Kingsbury  v.  Wild  (3  N.  H.  30).  155. 
Kiogsley  v.  Jordan  (85  Me.  137),  181. 
Kingston  Bank  v.  Ulcinge  (40  N.  Y.  391, 

100  Am.  Dec.  516),  167. 
Kinnty  v.  Knoebel  (61  111  112).  185,  204. 
Kipp  V.  Bullard  (30Minn.  84).  127. 
KIpp  V.  Feruhold  (37  Minn.  132),  214. 
Kite  V.   Town  of  Yellowhead   (80  111. 

208).  179. 
Klttredge  v.  Folsom  (8  N.  H.  98) ,  17. 
Klein  v.    I.oeber  (82  111.  App    528),  14.S. 
Kneass'  Appeal  (31   Pa.  St.  91),  '289,  290. 
Kaightv.    Morrison  (79  Ga.  55,11  Am. 

St.  Kep.  405),  28.  110. 
Knotts  V.  Stears  (91  U.  S.  6.38),  133. 
KqowUs  v.  Blodgett  (15  U.I.  463,2  Am. 

St.  Rep.  913),  43. 
Knox  V.  Nobel  (27  N.  Y.  Snpp.  206,  28  K. 

Y.  Supp.  355,  77  Hun,  232),  50. 
Knox  V.  Spratt  (19  Fla.  834),  liO. 
Knox  V.  Yow  (91  Ga.  3b7),  112. 
Koehler  v.    Ball   (2   Kan.   172,  83    Am. 

Dec.  451),  142. 
Kostenbader  v.  Spotis  (8C 

163. 
Kountz  V.  National  T.  Co. 

30. 
Krusev.  Wilson  (79  III.  233),  218. 
Kurtz  V.  St.  Paul  &  D.  R.  Co.  (65  Minn. 

60),  58. 


Pa.  St.  430). 
(197  Pa.  397), 


L. 


Lafferty  v.  Conn  (3  Sneed,  221),  108. 
Lamb  v.  Sherman  (19  Nwb.  681),  l.i4. 
Lwrnberton    v.    Merchants'    Babk    (24 

Minn.  281),  131. 
L-.niothe  v.  LIppott  (40  Mo.  142).  133. 
Laud  V.  Nelson  (79  Pa.  St.  407),  43. 
Lane  v.   Dorman  (3  Scam.  238,  36  Am. 

Dec.  543),  277. 
Linev.  NeUon  (79  Pa.  St.  407),  229,248. 
Lauey  v.  Garbee  (105  Mo.   305,24  Am. 

St.  Rep.  891),  33. 
Lanford  v.  Dunklin  (71  Ala.  594).  53. 
Langdon  v.  Strong  (2  Vt.   '234),  154. 
Langworthy  v.  Baker  ('23  111.  484),  48. 
Lanier  V.  Mcintosh  (117  Mo.  608,  38  Am. 

St.  Rep.  676),  135. 
Lurco  V.  Casaneuava  (.30  Cal.  .5S7),  39. 
Larinerv.  Wallace  (.36  Neb.  444),  144. 
Lbrson  v.  Winder  (14  Wash.  109,  .53  .\m. 

St.  Rep.  861),  '20. 


;u)i) 


TABLE  OF  CASES  CITED. 


Latta  V.  Tiitton  (122  Cal.  279,  68  Am.  St. 

Uep.  ;iO),  13. 
Latimer  v.  B.  K.  Co.  (43  Mo.  105,  97  Am. 

Dec.  378) ,  15. 
Lathrop  v.  Doty  (82  Iowa.  272).  182. 
Laub  V.  Buckmiller  (17  N.  Y.  620),  158. 
Laughman  v.  Thompson  (6  S.  &  M.  259), 

161. 
Laws  V.  Thompson  (4  Jones,  104),  168. 
Re  Leard's  Estate  (164  Ph.  St.  4.%),  164. 
Lebroke  v.  Damon  (89  Me.  113),  80. 
Leconte  v.  Irwin  (19  S.  C.  554),  123. 
LeKgettv.  Hunter  (19    N.   Y.   445),  272, 

278,  282. 
Leayard  V.  Phillips  (.32  Mich.  13),  164. 
Lee  V.  Gardner  (26  Miss.  521),  173. 
Lehman's  Succession  (41  La.  Ann.  987), 

108. 
Leisenringv.   Black   (5   Watts,  303,  30 

Am.  Dec.  .322),  123. 
Leldnd  v.  Wilson  (34  Tex.  91),  149,  150. 
Lemon  v.  Craddock  (Litt.  Sel.  Cds.  261, 

12  Am.  Dec.  .301),  151. 
Lenhardt  v.   Jennings    (119  Cal.    192)> 

104. 
Leonard  V.  Broughton  (120  Ind.   536,16 

Am.  St.  Rep.  347),  97. 
Letchford  v.  C<rr  (.'J2  Miss.  791),  128. 
Lewark  V.  Carter  (117  Ind.  206,  10  Am. 

St.  Rep.  40),  168. 
Lewis  V.  Duttoa  (8Hnw.  Pr.  103),  18. 
Lewis  V.  Lichty  (3  Wash.  213,  28  Am.  St. 

R"P.  25),  180. 
Lewis  V.  Owen  (64  Ind.  446) ,  215. 
LjwIsv.  Webb  (3  Greeul.  326),  22S. 
Lewis  V.  Whitten  (112  Ala.  318),  131. 
Levy  V.  Martin  (48  Wis.  198),  205. 
Levy  V.  Riley  (4  Or.  .392),  204. 
Libby  v.  Christy  (1  Red.  Sur.  465),  43. 
Leib  V.  Ludlow  (4  Otiio,  469),  186. 
Life  Association  v.  Fassett  (102  111.315), 

9. 
Lillinbridge  V.  Tregent  (.SO  Mich.   1(5), 

191. 
L'neoln    v.  Alexander   (52  Cal.   485,   28 

Am.  Rep.  639),  273. 
LIndley  v.  O'Reilly   (50N.  J.  Law,   636, 

7  Am.  St.  Rep.  802),  38. 
Lndsny  V.  Cooper  (94  Ala.  170,   33  Am. 

St.  Rep.  105),  177,  183. 
Lindsay  v.  Jaffray  (55  Tex.  626),  28. 
Lin  man  V.  Riggins  (40  La.  Ann.   761,8 

Am.  St.  Rep.  549),  82. 
Linn  B.  T.  Co.  v.  Terrill  (13  Bush,  463), 

137. 
Linsley  v.   Ilubbird    (44  Conn.   109,26 

Am.  Rep.  431),  281. 


Litchfield  V.   Cudworth   (15  Pick.  23), 

121,  124. 
Little  V.  Sinnet  (7  Iowa,  324),  108. 
Littleton,  Appeal  of    (93   Pa.  St.   177), 

52. 
Livingston  v.  Cochran   (33    Ark.   294), 

122. 
Loan  Association  v.  Topeka  (20  Wall. 

663) ,  220. 
Lockhart  v.  John  (7  Pa.  St.  137),  92. 
Lockwood  V.  Stradley  (1  Del.   Cn.  298, 

12  Am.  Dec.  97),  40. 
Leckwoodv.  Sturdevant  (6  Co  in.  373), 

124,  155. 
Loebv.  Struck   (Ky.,  42  S.  W.  Rep.  401), 

89. 
Lofland  v.  Ewing  (5  Litt.  42,15  Am.  Dec. 

41),  111. 
Logsdon  V.  Spevey  (64  III.  104),  il3 . 
London  V.  Robertson   (5  Blackf.  276), 

162. 
Longv.  Burnett   (13   Iowa,   28,  81  Am. 

Dae.  410),  51. 
Longv.  McKissick  (50 S.  C.  228),  162. 
Long  V.  Weller  (29  Gratt.  347),  80,  143, 

164. 
Longworth  v.  Goforth   (Wright,  192), 

175. 
L  )8    Angeles    C.  W.    Cj.    v.    Superior 

Court  (124  Cal.  .335),  21. 
Louisville  V.    University   (15  B.   Mon. 

[Ky.]  642),  252. 
L  luisville,  etc.,  Ry.  Co.  V.   BIythe   (69 

Miss.  939,  30  Am.  St.  Rep.  599),  268. 
Louisville,  etc.,  Ry.   Co.   v.  Nash   (118 

Ala.  477,  72  Am.  St.  Rep.  181),  10. 
L  (velady  v.  Burgtss  (32  Or.  418) ,  94. 
L  »w  V.  Purdy  (2  Lans.  422),  41. 
Lowderniilk   v.    Corpeniug   (101   N.   C. 

649),  111. 
L)yd  V.  Wallsr  (74  Fed.    Rep.  601),  142. 
L  ideman  v.  Hirth  (96  Mich.  17,  35  Am. 

St.  Rep.  588),  29. 
Ludlow  V.  Park  (4  Ohio,  5),  128. 
Luke  V.  Marshall  (5  J.   J.   Marsh.  353), 

36. 
L  impkins  v.  Johnson  (61   Ark.  80),  140. 
Lusk  v.  Reel  (36  Fla.  418,51  Am.  S:.  Rep. 

32),  135. 
Lynch  v.  Baxter  (4  Tex.  431,  51  Am. Dec. 

735),  2. 
Lyne  V.  Santord  (82T-X.  58,27  Am.  St. 

Rep.  852),  44,64,  81,82. 
Lyon  V.  Vanatta  (35  Iowa,  521),  71. 
Lyons  V.  Hammer  (84  Ala.   197,  5  Am. 

St.  Rep.  363),  71. 
Lyster's  Appeal  (54  Mich.  325),  187. 


310 


TABLE  OF  CASES  CITED. 


M 

Macey  v.  Stark  (116  Mo.  481),  48,  82. 
Macy  V.  Raymond  (9  Pick.  285).  113. 149. 
Maddox  V.  Snlllvan  (2   Rich.   Eq.   4,  44 

Am.  Dec.  234).  108. 
MHgrudPr  v.  P«ter  (11  Gill  &  J.  217),  37. 
M<»han  v.  Repve  (6  TUaekf.  215),  212. 
Malioney.  In  re  (.S4  Hun,  501).  72. 
Malift  V.  Elliott  (51  Csl.  ^),  132,  l.W. 
Malloy  V.  Bu'-lington  &  M.    R.   Co.    (53 

Kin.  557).  11. 
Manlev  V.  Headly  (10  Kan.  88).  12. 
Manson  V.   Mincanson    (166  U.   S.  533), 

82. 
Maple  V.  Kuasart  (53  Pa.  St.  348,  91  Am. 

Dec.  214),  171,  173. 
Maple  V.  Nelson  (31  lows,  H22).  106. 
Maronev  v.  Bovle  (141  N.  Y.  462,  33  Am. 

St.  Rep.  821).  135. 
Marr  V.  Roo'li'iy  (19  Mp.  150).  113. 
M«rr  V.  Peay  (2  Murpb.  84,  5  Am.  Dec. 

521).  41. 
Mardhall  v.  Greenfield  (8  G.  &  J.  353,  29 

Am.  Dec.  559) ,  156. 
Miriiii  V.  Bunsacii  (61  Mo.  556),  155. 
Martin  v.  IveS  (17  Serg.  &  R.  364 ),  172. 
Martin  v.  Tar  <er  (43  Miss.  517),  162. 
Mdrtiu  V.  Wilbourne  (211111,395,27  Am. 

Dec.  393),  154. 
Marou  V.  Ham  (36  Me.  573),  113, 149. 
Mason  v.  Osgood  (64  N.  C.  467),  2,  140. 
Mason,  e.c,  Co.  v.  Killogb  M.  Co.  (45 

S.  U.  11),  96. 
Mather  V.  CUnpman  (6  Conn.  54),  248. 
Mitheson  V.  llearin  (29  AU.  210),  71. 
Matteucci   v.  Whelan  (123  Cdl.  312,   69 

Am.  St.  Rep.  70),  137. 
Maul  V.  Ilellman  (39  Neb.  322),  2. 
MauiT  V.  I'aiTish  (26  Ohio  St.  636),  64,  75. 
Maxwell   v.  Goetschlus  (40  N.  J.  Law, 

3S3,  29  Am.  Rep.  242),  234. 
May  V.  Marks  (74  Ala.  249),  139. 
Mayer  V.  Wick  (15  Ohio  St.  548),  109. 
Mayers  v.  Carter  (87  N.  C.  146),  HI. 
Maynard  v.   Cooks  (Miss.,    18  South. 

Itep.  374),  140. 
Mayor  v.  Horn  (26  Md.  194),  251. 
Mays  V.  Wherry  (."iSTenn.  133),  131. 
McAnulty  v.  McGlay  (16  Neb.  418),  53. 
McArthur  v.  Carrie  (32  Ala.  275),  116. 
McArthur  v.  Oliver  f60  Mich.  606),  134. 
Mcl'.ain  v.  McRaIn  (15  Ohio  St.  337).  140. 
McP.ryde  v.    Wilkinson   (29  Ala.   662), 

210. 
MeCaskev  v.  <;raff  (23  Pa.  St.  321,  62  Am. 
Dec.  336),  207. 


McCauley  v.  Harvey  (49  Cal.  497),  69, 

82. 
McClay  V.  Foxworthy  (18  Neb.  295),  78. 
McCormack  v.  Kimmel  (4  HI.  App.  121), 

57. 
McCormack  v.  Mason  (1  S.  &  R.  92),  102. 
McCormlck,  Appeal  of  (57  Pa.  St.  54,  98 

Am.  Dec.  191),  42. 
McCormlck  v.  The  W.  A.  Wood  M.  &  R. 

M.  Co.  (72  lad.  518),  137. 
McComb,  In  re  (117  N.  Y.  378),  39. 
McComb  v.  Spangler  (71  Cal.  418),  23. 
Mc-Corkle  v.  Rhea  (75  Ala.  213),  57. 
McCown  V.  Foster  (33  Tex.  241),  133. 
McCown  V.  Terrell  (9  Tex.  Civ.  App.  66), 

39. 
McCratken  v.  Adler  (98  N.  C.  400,  2  Am. 

SI.  Rep.  340).  126,  127. 
McCrady  v.  Jones  (36  S.  C.  136).  109. 
McCrary  v.  Tasker  (41  Iowa,  255),  48. 
McCreery  V.    Davis   (44  S.  Car.    195,  51 

Am.  St.  Rep.  794),  10. 
McDade  v.  Burch  (7  Ga.  559,    50  Am. 

Dec.  407),  60. 
McDaniel  v.  Correll  (19  111.  228,  68  Am. 

Dec.  587),  231. 
McDermott  v.  Barton  (106  Cal.  194).  109. 
McDonald   v.    duller   (11  S.   D.   .S55,  74 

Am.  St.  Rep.  815),  103. 
McDowell  V.  McKenzle  (65  Ga.  630),  176. 
McFall    V.   Buckeye,   etc.,  Assn.    (121 

Cal.  468,  6S  Am.  St.  Rep.  47),  104. 
McFeely,  Matter  of  (2  Kedf .  541) ,  107. 
McGavock  v.  Bell  (3  Cold  w.  612) ,  88.  145. 
McGee.    In  re   (38  N.  Y.    Supp.    1062,  5 

App.  Dlv.  527),  69. 
MiGee  V.  Haynes   (127   Cal.  366,  78  Am. 

St.  Rep.  57),  31. 
McGheev.  Kills  (4Litt.  245,  16  Am.  Dec. 

124),  168. 
MeGhee  v.  Hoyt  (106  Pa.  St.  516).  158. 
McGee  V.  Walils  (57  Miss.  638),  190,  205. 
McGiU  v.  Doe  (9lDd.  306),  130. 
McGlawhorn   v.  WorthJngton  (98  N.  C. 

199),  140, 145. 
McGulnness  v.  Whalen  (16  R.  I.  553,  27 

Am.  St.  Rep.  763),  2. 
McGuIre  v.    Kouns  (7  Mon.  386,  18  Am. 

Dec.  187),  154. 
McIIany  v.  Schenck  (88  111.  357) ,  187. 
McKay  v.  Coleman  (85  Mich.  60),  167. 
McKean  v.  Vick  (108  111.373),  48. 
McKeever  v.  Ball  (71  Ind.  a98),  61,  64,  92. 
McKernan  v.  Ntfl  (43  Ind.  503),  164. 
MeKlnney  v.  Jones  (55  Wis.  89),  93. 
McLano  v.  Johnson  (43  Vt.  48),  4». 
McLaughlin  v.  Daniel  (8  Dana,  183), 190 


311 


TABLE  OF  CASES  CITED. 


McLaughlin  v.  Janney  (6Gratt.  609), 

113. 
McLeod  V.  Johnson    (28  Mis?".   374),  171. 
McManus  v.  Keith  (4y  111.  389).  162. 
McMillan  v.    Edwards  (75  N.  C.  81),  218. 
McMilUon   V.  Leonard    (19    Colo.    98), 

126. 
McNalr  V.  Hunt  (.5  Mo.  301),  lOM. 
McNauRhton  v.  McLean  (73  Mich.  250), 

112. 
McNeil  V.  Congrpgational  Society   (66 

Cal.  105),  15,53.271. 
McPhersou  v.  Cunliff  (11  S.  &  R.  426, 14 

Am.  Dec.  642),  71,  172. 
aicRae  V.  Danner  (8  Or.  63),  143. 
Meadows  v.   Meadows  (73  Ala.  356),  63. 
Mebane  v.  Layton  (89  N.  C.  396), 127. 
Mechanics'  S.   &  B.  Assn.  v.  O'Connor 

(29  Ohio  St.  651),  143,  164. 
Meddls  V.  Fenley  (98  Ky.  432),  165. 
Meeks  V.  Thompton   (8  Gratt.  34,    56 

Am.  Dec.  134),  39. 
Meher  v.  Cole  (50  Ark.  361,  7  Am.   St. 

Rep.  101),  170. 
Melius  V.  I'fister  (59  Wis.  186),  51. 
Melms  V.  Pabst  B.  Co.  (93  Wis.  153,  57 

Am.  St.  Rep.  899).  121, 132, 133. 
Melms  V.  Pflster  (59  Wis.  194),  92. 
Melton   V.  Fitch   (125   Mo.    281),  53,  84, 

139,  154. 
Menges    v.   Dentler   (33  Pa.   St.   495,  75 

Am.  Dec.  616),  248,  251. 
Menges  v.  Oyster  (4  W.  &  S.  20,  33  Am. 

Dec.  56),  115. 
Menges  t.  Wortman  (1  Pa.  St.  218),  251. 
Mercer  V.  Watson  (1  Watts,  330),2.S2. 
Merchants' Bank   v.   Campbell  (75  Va. 

455).  166. 
Merchants'  N.  B.   v.  Braithwaite  (7  N. 

D.  338,  66  Am.  St.  Rep.  653),  30. 
Mercler  v.  Sterlin  (5  La.  472),  43. 
Merrill  v.  Harris  (26  N.  U.  143,  57  Am. 

Dec.  369),  80. 
Merrill  v.  President,  etc.  (31  Me.  57,  50 

Am.  Dec.  649),  10. 
Merrit  v.  Terry  (13  Johns.  471),  148. 
Merrltt  v.  Home  (5  Ohio  8t.  307,  67  Am. 

Dec.  298).  173. 
Messerschmidt  v.  Baker  (22  Minn.  81), 

152. 
Metcalf    V.    Hoopingardner  (45  Iowa, 

510),  279. 
Metcalfe  v.  Hart   (3  Wyo.  613,31  Am. 

St.  Rep.  122),  20,  30. 
Meyer  v.  McUougal  (47  III.  278),  79,  133. 
Meyers  v.   McGavock   (39  Neb.  843.  42 

Am.  St.  Rep.   027),  110. 

312 


Michael  v.  McDermott  (17  Pa.  St.  353, 

55  Am.  Dec.  560),  116.  • 
Mickel  V.  Hicks   (19  Kan.  578,  27  Am. 

Rep.  161),  73. 
Milburn  v.  Phillips  (143  Ind.  93,  52  Am. 

St.  Rep.  403).  186,260. 
Miles  V.  Wheelor  (43  111.  123),  120. 
Miller  V.  Babcock  (29  Mich.  526),  6. 
Miller  V.  Baker  (160  Pa.  St.  172),  134. 
Mills rv.  Craig  (83  Ky.  623,  4  Am.  St.  Rep- 

179),  213. 
Miller  v.  Freezer  (82  N.  0.  194).  HO. 
Jliller  V.  Jones  (26  Ala.  247),  751. 
Miller  V.  Kolb  (47  Ind.  220),  215. 
Miller  v.  Miller  (10  Tex.  319).  49. 
Miller  V.  White  (46  W.  Va.  67,  76  Am.  St. 

Rep.  91),  12. 
Mills  V.  Lombard  (32  Minn.  1-59, 19  N.  W. 

Rep.  187), «87,  134. 
Mills  V.  Tukey  (22  Cal.  373,83  Am.  Dec. 

74). 151. 
Milner  v.  Vandivere  (86  Gn.  540).  182. 
Mining  Co.  v.  Mining  Co.  (116  111.  170), 

192. 
Minn.  Co.  v.  St.  Panl  Co.  (2  Wall.  609), 

147. 
Minnesota  Co.  V.  St.  Paul  Co.  (2  Wall. 

640).  1. 
Minor  v.  Lumpkin  (Tex.  C.v.  App. ,   29 

S.  W.  Rep.  800),  157. 
Minor  v.  Natchez  (4  S.  &  M.  602,  43  Am. 

Dec.  488),  108. 
Minor  V.  Selectmen  (4  S.  &  M.  602).  irs. 
Mitchell   V.  Aten  (57  Kan.  33,  1  Am.  St. 

Rep.  231),  25. 
Mitchell  V.  Bliss  (47  Mo.  353).  154. 
Mitchell  V.  Campbell   (19  Or.   198),  193, 

240. 
Mitchell  V.  Etter  (22  Ark.  178) ,  244. 
Mitchell  V.  Freedley  (10  Pa.  St.  208),  173. 
Mitchell  V.  Ireland  (54  Tex.  .301),  114. 
Mitchell  V.   Schoonover    (16  Or.   211,8 

Am.  St.  Rep.  282),. 30. 
Mobberly  v.  Johnson   (78  Ky.  273) ,  93, 

154. 
Mock  V.  Stuckey  (86  Ga.  187),  173. 
Mofflttv.    Moffltt  (69  III.  641),  61,  62,  64, 

108. 
Mohan  v.  Smith  (30  Minn.  259),  127, 181. 
Mohr  V.  Manniere  (101  U.  S.  41,  9  Ch.  L. 

N.  270),  64,  71. 
Mohr  V.  Porter  (51  Wis.  487),  71. 
Mohrv.  Tulip  (40  Wis.  66),  64,  175,  204. 
Monaghan  v.  Small  (6  S.  C.  177),  163. 
Monaghanv.  Vandjke  (27  III.  155),  77. 
Monarquev.  Monarque  (80  N.  Y.  320), 

163. 


TABLE  OF  CASES  CITED. 


Monell  V.  Denniaon  (17  How.  Pr.  422), 

18. 
Money  V.  Turnipseed  (50  A'a.  499),  85. 
MoDtsjoiHery  V.  Johnson    (31   Aik.   74), 

71,84. 
Montgomery  v.   Realhafer   (S5    Tenn. 

668,  4  Am.  St.  Rep.  789),  9S,  101. 
Monigomery  V.  Samory  (99  U.   S.  482), 

147. 
Moody  V.  Butler  (63  Tex.  210),  89, 92. 141. 
Moody  V.  Hamilton  (22  Fla.  98),  218. 
Moody  V.  Moeller  (72  Tex.   635,  13  Am. 

St.  Rep.  839),  115. 
Moore  T.  Calvert   (8  Okla.  358,  58  Pac. 

Rep.  627).  191. 
Moore  V.   Cottinsham    (113  Ala.   148,59 

Am.  St.  Rep.  100),  65,  81, 139. 
Moore  V.  Greene  (19  How.  [U.  S.]  69), 

140. 
Moore  V.  Johnson  (12  Tex.   Civ.   App. 

694),  108. 
Moore's  Ad.v.  Moore's  Heirs  (11  Hump. 

.512),  44. 
Moore  v.  Neil  (39  III.  256),  133. 
Moorev.  Philbrick  (32Me.   102,52  Am. 

Dec.  642).  17. 
Moore  V.  Shultz  (13  Pa.   St.  98,  53  Am. 

Dec.  446),  2. 
Moorev.  Starks  (1  Ohio  St.  .369),  ?.l.  74. 
Moore  V.  WiDgate  (53  Mo.  398),  154. 
Moran  v.  James  (45  N.  Y.  Supp.  537,  47 

76.  486),  19. 
Moreau  V.  Rranham  (27  Mo.  351),  210. 
Morey  v.  Hoyt  (65  Conn.  516).  112. 
Morgan  v.  Wattles  (69  Ind.  260),  121. 
Morrell  v.  Ingle  (23  Kan.  .32).  115. 
Morris  v.  Ilogle  (37  111.  150,  87  Am.  Dec. 

243),  27,  .')7,  75. 
Morrison  v.  Harrington    (120  Mo.   665), 

125. 
Morrow  V.  Weed   (4  Iowa,   77,  66  Am. 

Dec.  122 J,  64,  79,  108. 
Morse  v.  Mutual,    etc.,  Assn.   (45    La. 

Ann.  736),  11. 
Morton  V.  Welborn  (21  Tex.  773),  169. 
Moses  V.  McFailane  (2   Burr.  1009),  167. 
Mott  V.  Ackerman  (92  N.  Y.  .539),  41. 
Mount  V.  Manhattan  Co.  (43  N..L  Eq. 

35), 135. 
Mount  V.  Vallpy  (19  .Mo.  621),  63. 
Mountour  V.  Purdy  (11   .Minn.  384),  108. 
Moyer  v.  Buck^  (2  Ind.  App.  571,  50  Am. 

8t.  Rep.  251).  69. 
Mudge  V.  StelDhart  (78  Cal.  34,   12  Am. 

St.  Rep.  17),  12. 
Mnlr  V.  Craig  (3  Blackf.   293,  25  Am. 

Dec.  HI),  108. 


Mulford  V.  Beveridge  (78  111.  458),   71, 

80. 
Mulford  v.Stalzenback  (46    111.  3C3),  79 

1.34. 
Muncie  Bark  v.  Miller  (91  Ind.  441),  2.50. 
Munday  V.  Kaufman  (48  La.  Ann.  591), 

82. 
Munday  V. Vail  (34  X.  J.  Law,  422),  7,20. 
Mnnn  v.  Biirges  (70  111.  604),  121. 
Munson  v.  Cole  (98  Ind.  502),  37,  39. 
Munson  v.  Xewson  (9  Tex.  109),  17. 
Murphy  v.  DeFrance  (105  Mo.  53),  47. 
Murphy  v.  Hill  (77  Ind.  129),  115. 
Murphy  v.  Teter  (.56  Ind.  545),  121. 
Murray  v.  Etchepare   (129  Cal.  318).  23. 
Murray  v.  Hnb^ken.   L.    &   I.    Co.    (18 

How.  [U.  S.]  272),  253. 
Murray  v.  Superior  Court  (129  Cal.  628), 

21. 
Murrell  v.  Roberts  (11  Ired.  424,53  Am. 

Dpc.  449),  95. 
Muskingum     Bank    v.    Oarppntfr    (7 

Ohio,   pt.l.p.   21,28  Am.  Dec.   616). 

134. 
Mupselman  v.    Eohelman    (10    Pa.    St. 

394,  fl  Am.  Dpc.  493),  121. 
Mutual   B.   I.    Co.  V.    Winne  (20  Mont. 

40) .  252. 
Myers  V.  Davis  (47  Iowa,  325).  78,  SO. 
Myers  v.  McGavock  (.39  Neb.  843.  42  Am. 

St.  Rep.  627),  52,  53,  57,  72,  90,  93. 


N. 


National  Bank  v.  Sprague  (21  N.  J.  Eq. 

457).  165. 
Neal  v.  PHtterson  (40  Ga.  363).  116. 
Nelign  V.  Keene  (16  Neb.  407),  106,  145. 
'N»l80n  V.  Bradhach  (44  Mo.  596, 100  Am. 

Dec.  .328),  156. 
Nelson  V.  Bronnenberg   (81  Ind.   102), 

131. 
Nelson   v.  Carrington   (4  Munf.   332.  6 

Am.  Dec.  519),  41. 
Nelson  v.  Rountree  (23  Wis.  307),  231, 

232,  2.55. 
New  Orleans  v.   Louisiana  C.  Co.    (UO 

U.  S.  651),  125. 
Newcomb  v.  Smith  (5  Oho,  448),  54. 
Newell  T.  Montgomery  (30  111.  App.  48, 

129  III.  .58).  42. 
Newell  V.  West  (13  Blatchf.  114),  42. 
Newman,    Kstate  of  (75  Cal.  213,  7  Am. 

St.  Rep.  146),  25. 
Newman  v.  Samuels  (17  Iowa,  62S),  248, 

2.^1. 
NlchoU  v.  Nlcholl  (8  Paige,  34?),  92. 


31  a 


TABLE  OF  CASES  CITED. 


Nichols  V.  Lpe  (16  Colo.  147).  65. 
Nicbum   v.   Burckhart    (30   Or.   464,  60 

Am.  St.  Uep.  822),  15. 
Niclioll  V.  Scott  (!t9  III.  520).  40. 
NWel  V.  Carson  (47  Ark.  421),  169. 
Noland  V.  BHrrett  (122  Mo.  181,43  Am. 

St.  Rep.  572),  2,  106,146. 
Noland  v.  Noland  (12  Bush,  426),  110. 
Norman   v.    EHreka  Co.  (98  Ala.  479,  39 

Am.  St.  Rep.  45),  150. 
Norman  v.  Heist  (5  W.  &  S.  171,  40  Am. 

Dec.  496).  232. 
Norrls  v.  Clymer  (2  Pa.  St.  284),  266. 
Northcraft  v.  Oliver  (74  Tex.  162),  170. 
Norton  v.  Norton  (5  Cush.  524),  83. 
Norton  v.   Pettibone  (7  Conn.   319,  18 

Am.  Dec.  116).  248. 
Nowler  v.  Colt  (1  Ohio,  519, 13  Am.  Dtc 

640). 15,  185. 
Nugent  V.  Gifford  (I  Atk.  463),  36. 

O. 

Oakland  v.   Oakland  W.    F.    Co.    (118 

Cal.l60),125. 
Ot)er   V.    Manufacturing   Co.    (44   La. 

Ann.  570),  21. 
O'Connor  v.  Huggins  (113  N.  Y.  511),  76. 
O'Connor  V.  Vineyard  (91  Tex.  488),  17. 
Od'-n  V.  Dupuy  (93  Ala.   39,  99  Ala.   36), 

180. 
O  Doinell  v.   Merguire  (Cal.,60  Pac. 

Rep.  981),  91. 

0  Donoghue  V.  Boies  (92  Hun.  ,3), 120.' 
Odlbermaa  v.   Ide  (93   Wis.  669,  57  Am. 

St.  Rep.  947),. HI. 
Oettluger  v.  Specht  (162  III.  179),  45. 
Ogden  V.  Waters  (12  Kan.  290),  163. 
0<le  V.  Reynolds  (75  Md.  145),  39. 

01  ver  V.  Park  (101  Ky.  1),78. 

ONon  V.  Nunnally  (47  Kan.  391,  27  Am. 

St.  Rep.  296),  6. 
O'Malley  V.  Fricke  (104  Wis.  280),  31. 
Oiiarato's  Interdiction  (46  La.  Ann.  73), 

150. 
Opinion  of  the  Judges   (4  N.  H.  572), 

263. 
Ord  V.  Bartlett  (83  Cal.  428) ,  23. 
Orman  v.  Bowles  (18  Colo.  463),  78: 
Orton  V.  Nnonan  ('23  Wis.  102),  246. 
Osgood  V.  Blackmore  (59  III.  261).  124. 
0^man  v.  Traphagan   ('23  Mich.  80),  131, 

143, 149. 
Osterberg  v.  Union  Trust  Co.  (93  U.  S. 

424),  162,  164. 
O'Sullivan  v.  Overton  (56  Conn.  602),  11. 
Otis  V.  Kennedy  (107  Mich    312).  121. 
Overand  v.  Menzer  (83  Tex.  122),  155. 


Overfleld  v.  Bulllt*  (1  Mo.  749),  36. 
Overton  v.  Johnson  (17  Mo.  442) ,  63,  78. 
O-wen  v.  Slatter  (26  Ala.  547.  62  Am.  Dec. 

745),  162. 
Owens  V.  Hart  (52  Iowa,6'2n),  127. 


Packer,  Estate  of  (126  Cal.  396,  73  Am. 

St.  Rep.  58),  287,  292,  293. 
Paller  v.  Johnson  (81  Ga.  254),  155. 
Paine  v.  Hosklns  (3  Lea,  284),  114. 
Palmer  v.  Oakley  (2  Doug.  [Mich.]  433, 

47  Am.  Dec.  41),  93. 
Palmer  V.  Riddle  (180  111.  461),  131. 
Palmerton  v.  Hoop   (131  Ind.  23),  143, 
'  ISO. 

Parker  v.  Abbott  (130  Mass.  25),  107. 
Parker  v.  Nichols  (7  Pick.  Ill),  89. 
Parker  v.  Shannon  (137  111.  370),  219. 
Parmelee  v.  McGinty  (.52  Miss.  475),  173. 
Parsons  v.  Lindsay  (41  Kan.  336, 13  Am. 

St.  Rep.  290),  26. 
Patteev.  Thomas  (59  Mo.  163).  63. 
Patterson  v.   Carreal  (3  A.  K.  Marsh. 

618,  13  Am.  Dec.  208).  124. 
Patterson  v.  Lemon  (50  Ga.  231),  88, 133. 
Paty  v.  Smith  (,50  Cal.  159),  271. 
Paulsen  v.  Hall  (39  Kan.  365),  115. 
Paxton  V.    Freeman   (6  J.  J.   Marsh. 

234,  22  Am.  Dec.  74),  126. 
Paxton  V.  Stern  (127  Ind.  '289),  186. 
Payne  v.  Payne  (18  Cal.  291),  39 
Pearce  v.  Patton  (7  B.  Mod.  162.  45  Am. 

Dec.  61).  248. 
Pearson  v.  Jamison  (1  McLean,  197), 

110. 
Pecotte  v.  Oliver  (2  Idaho,  230),  114. 
Peebles  V.  Watts'  Admr.  (9  Dana,  103, 

33  Am.  Dec.  531),  41. 
Pekin   v.  McMahon  (154  111.  141,  45  Am. 

St.  Rep.  114), 96. 
PekIn  M.  Co.  v.  Kennedy  (81  Cal.  358), 

134. 
Pemberton  v.  McRae  (75  N.  C.  497),  130. 
Pendleton  V.  Shaw  (18  Tex.  Civ.  App. 

4.39),  141,  142,  158. 
Penn  v.  Folger  (77  III.  365) ,  40. 
Penniman  v.  Colo  (8  Mete.  496),  96. 
Pennington  v.  Clifton  (10  Ind.  172),  168. 
Pennoyer  v.  Neff  (96  U.  S.  722).  10. 
People's  S.  B.  v.  Wilcox  (16  R.I.  258,  2 

Am.  St.  Rep.  894),  11. 
People  V.  Piatt  (17  Johns.  195) .  252. 
People  V.  Bowrlng   (8  Cal.  406,  68  Am. 

Dec.  331),  151. 
Perham  v.  Kuper  (61  Cal.  331),  150. 
Perin  V.  MLGibbin  (53  Fed.  Rep.  86),  19. 


314 


TABLE  OF  CASES  CITED. 


Perking  V.  Fairfield  (11  Macs.  826),  89. 
Perkins  v.  Gridley  (50  ChI.  97).  140. 
Perkins  V.  Perkins  (16  Mich.  162),  187. 
Peiking  v.  Winter  (7  Ala.  855).  71. 
Perkins'  Lessee  v.  Dibble  (10  Odio,  433, 

.S6  Am.  Dec.  97),  153.  | 

Perry  v.  Adams  (9S  X.  C.  167,  2  Am.  St. 

Rep.  32r,),73,  1C4,  205,  206. 
Perry  v.  Hlakey  (5  Tex,  Civil  App.  331)> 

89,  142. 
Perry  v.  Clarkson  (16  Ohio,  571),  113. 
Perry  v.  Scott  (109  N.  C.  374) ,  155. 
Peterson  v.  Cdemical  Bank  (32  K.  Y.  21, 

88  Am.  Uec.  298),  35. 
Petrie  v.  Clark  (11  S.  &  R.  377.  U  Am. 

Dec.  616),  35. 
Pettinglll  V.  Moss  (3  Minn.  222,  74  Am. 

Dec.  747),  113. 
Pbelps  V.  Benson(161  Pa.  St.  418),  132. 
Phelps  V.  Buck  (40  Ark.  219),  53. 
Pbilbrick  v.  Andrews  (S  Wash.  7).  127. 
Phillips  V.  Coffee   (17  111.  154,  63  Am. 

Dec.  Ho7),  154. 
Phillips  V.  Dana  (3  Scam.  551).  113. 
Pnilllps  V.  HsUnd  (102  Wis.  253),  J38. 
Phillips  V.  Phillips  (13  S.  D.  231),  81. 
Phillips  V.  Taber  (13  S/  D.  221).  126. 
Picard  v.  Montr jse  (Miss.,  17  South. 

R  p.  .=<75),161. 
Pike  V.  Waasall  (94  U.  S.  71),  147. 
Pinckaey  V.  Snoith  (20  Hun.  524),  73. 
Plikerton  v.  Harrell  (106  Ga.  102,  71  Am. 

St.  Rep.  242),  162. 
Pioneer  Land  Co.  V.  Maddux   (109  Cal. 

633,50  Am.  St.  Rep.  67),  31. 
Piper  V.  Elwood  (4  Den.  165),  166. 
Place  V.  Riley  (91  K.  Y.  1).  102. 
Piatt's  Heirs  V.  McCullough's  Heirs  (1 

McLean.  69),  149. 
Pool  V.  Kills  (64  .Miss.  555).  205. 
Ponder  V.  Moseley   (2   Fla.  207,  48   Am. 

St.  Rep.  194),  K'i. 
Pope  V.  Benster  (42  Neb.  304,  47  Am.  St. 

Rep.  703),  162. 
Porter  V.  Mariner  CoOMo.  .364),  151. 
Potter  V.  Smith    (.W  Ind.  231),  120. 
PnwerT.  Larabee(3N.  D.  602,  44   Am. 

St.  Rep.  577),  114,  116,  131. 
Powers  V.  Bergen  (6  N.  Y.  358),  282. 
Prater  V.  McDonouk»h  (7  Lt-a,  670).  108. 
Pratt  V.  I'.dtes  (161  Mass.  315).  61,  79. 
Pratt  V.  HouKhtallng  (*'•  Mich.  4.j7) ,  80. 
Preston  v.   Breckinridge  (86  Ky.  619), 

130. 
Preston  v.  Harrison  (9  Ind.  1),  169. 
Price  V.  Boyd  (1  Dina,  436).  168. 
Price  V.  Johnson  (1  Ohio  St.  390),  15. 


3 


Price  V.  Winter  (15  Fla.  66).  74,  78,  88. 
Provident  L.  T.  Co.  v.  Marks  (59  Kan 

230,68  Am.  St.  Rep.  349).  23.  24. 
Pryorv.  Downey  (50  Cal.   389,   19  Am. 

Rep.  656) ,  51.  55,  230.  233 ,  267. 
Puckettv.   McDonald  (6  How.  [Miss. J 

269).  72,  84. 
Purl  V.  Duvall  (5  H.  &  J.  69,  9  Am.  Doc. 

490),  111. 
Pursely  v.   Hays     (17  Iowa,  310),  171, 

173. 
Pursley  V.  Hayes  (22  Iowa,  11,  92  .\m. 

Dec.  350),  91,  243. 

Q- 

Quivey  v.  Baker   (37  Cal.  471) ,  216,  217. 

R. 

Radovlch,  Estate  of  (74  Cal.  536,  5  Am. 

St.  Rep.  486),  42. 
Ragland  v.  Green  (US.  &M.  194),  204. 
Rain  v.  Young  (61  Kan.  428,  78  Am.  St. 

Rep.  325),  101. 
Randolph  v.  Bayue  (44  Cal.  370) ,  25. 
Rinkin  V.  M'l'.er   (43  Iowa,   11),  71,   73, 

243. 
Rankin  V.  Rankin  (36  III.    293,  87  Am. 

Dec.  205),  37. 
Rarborg  V.  Hammond  (2   H.   &  G.   42). 

18. 
Ratliff  V.  Graves  (132  Mo.  76),  126. 
Rawles  V.  Jackson  (104  Ga.  593,  69  Am. 

St.  Rep.  185),  102,  1"7. 
Rawlins  V.  Biiiley  (15  III.  178),  140. 
R^a  V.   McEachron   (13   Weud.   465,   28 

Am.  Dee.  476),  140. 
Ream  v.  WelL^s  (61  Ohio  St.  131) ,  181. 
•  Rector  V.  Ilartt  (8  Mo.  418,  41  Am.  Dec. 
650),  131. 
R^ed  V.  Austin  (9  Mo.  722,  45  Am.  Dec. 

336).  95. 
Reed  V.  Colby  (89  III.  104),  48. 
Reed  v.  Crostliwalt  (6  Iowa, 218,  71  Am. 

Dec.  406),  HW. 
Reed  V.  Radlgan  (12  Ohio  St.  292),  140. 
Reid  V.  Holmes  (127  .Mas^.  326),  9. 
Remick  V.  Butterfleld    (31    N.  H.   70,64 

Am.  Dec.  316),  121. 
Remington  v.  Litliicum  (14  Pet.  92),  1.50. 
Uenler  V.  Hurlbnrt   (31  Wis.  24,  29  Am. 

St.  Rep.  850),  95. 
Requa  v.  Holmes  (2^5  N.  Y.  338),  175. 
Reynolds  v.  Schmidt  (20  Wis.  374),  CI. 
Reynolds  v.  Stockton  (43  N.  .J.  Kq.  211, 
3  Am.  St.  Ren.  -WS,  140  U.  S.  254).  20. 
I   Reynolds  V.  Wilson  (16  ill.  .394,  60  Am. 
'       Dec.  753),  107. 

15 


TABLE  OF  CASES  CITED. 


Rbame  v.  Lewis  (13  Rich.  Eq.    269), 

42. 
Rbeelv.  HIces  (25  N.  Y.  289),  107. 
llice  V.  Parkmau  (16  Mass.  32if),  227,  266, 

280. 
Kieharrts  V.  liclelier  (6  Tex.  Civ.  App. 

284),  94. 
Uicharcis  v.  Rote  (68  Pa.  St.  255),  2.S3. 
Richardson  V.  IJutler   (82    ChI.   172,    16 

Am.  St.  Uep.  101),  64,  66,  145,  164. 
Richardson  V.  Mouson     (23    Conn.  91), 

280. 
Richardson  v.  Vlcker  (74  X.  C.  278),  162. 
Ricbraan  v.  Supervisors  (77  Iowa,  .'513, 

14  Aui.  St.  Hep.  308),  248. 
Richmond  V.  Maraton    (15  Ind.    136,  42 

Am.  Dec.  204),  168,  185. 
Rickelts  V.  Ungangst   (15  Pa.  St.  90,  53 

Am.  Dec.  572),  106. 
Riddle  V.  Hill  (51  Ala.  224),  161. 
Riddle  V.  Roll  (24  Ohio  St.  572),  120. 
Riddle  V.  Turner  (52  Tex.  135),  97. 
Rider  V.  Reagan    (114  Cal.  667),  268,  278. 
Riggs  V.  Powell  (66    N.  Y.  193),  164. 
Riggs  V.  Sterling   (60  Mich.  643,1  Am. 

St.  Rep.  554),  127. 
Rigney  v.  Coles  (6  Bosw.  479),  33. 
Rigney  v.  Rigney  (127  N.  Y.  408,  24  Am. 

St.  Rep.  462),  13. 
Rigney  v.  Small  (60  111.  146),  112. 
Rikeman  v.  Kohn  (48  Ga.  183),  97. 
Riley  v.  Mrtrtinetti  (97  Cal.  575,  33  Am. 

St.  Rep.  209),  135. 
Riley  v.  McCord  (24  Mo.  265),  18. 
Riley  V.  McNichols  (1  Heisk.  17),  11. 
Ritter  V.  Scammell  (U  Cal.  238,  70  Am. 

Dec.  775),  134. 
Robb  V.  Irwin  (15  Ohio,  689),  71. 
Robbins  v.  Bales  (4  Cush.  104),  1.33. 
Robert  v.  Gasey  (25  Mo.  584).  140. 
Robtrts  V.  Lindley  (121  Ind.  56),  180. 
Roberts  v,  Roberts  (61  Ohio  Si.  96),  7.S. 
Roberts  v.  Bradford  (73  Ala.  110),  170, 

205. 
Robertson  v.  Iloge  (S3  Va.  124),  105. 
Robertson  V.  Johnson  (57  Tex.   62),  84, 

141. 
Rob.  rtson  v.  Smith  (94  Va.  250,  64  Am. 

St.  Rep.  723),  144. 
Robinson  v.  Hall  (33  Kan.  139) ,  151. 
Robinson  V.  Justice   (2   Pa.  Rep.  19,  21 

Am.  Dec.  407),  172. 
Robinson  v.  Martell  (11  Tex.  149),  41. 
Roche  v.  Waters  (72  Md.  264),  241. 
Rogers  v.  Abbott  (37  Ind.  138),  212. 
Rogers  v.  Benton  (39  Minn.  39,12  Am. 

St.  Rep.  613),  191. 


(63 
Y. 


Am. 


Rogers  V.  Cady  (104  Cal.  288,  43  Am.  St. 

Rep.  100),  19. 
Rogers  v.  Cawood  (1  Swan,  143,  55  Am. 

Dec.  739),  114. 
Rogers  v.  Clemens  (26  Kan.  522),  44. 
Rogers  v.  Druffel  (46  Cal.  654),  114. 
Rogers  v.  Johnson  (125  Mo.  202),  82. 
Rogers  v.  Jones  (13  Tex.  Civ.  App.  453), 

37. 
Rogprs  V.  Wilson  (13  Ark.  507),  71. 
Roderigasv.  Ease  River  Sav.  Inst. 

N.  Y.    460,   20   Am.    Rep.  555,   76  N . 

316,  32  Am.  Rep.  309),  7,  16 
Rodgcrs  V.  Smith  (2  Ind.  526),  162. 
Rollins  V.  Henry  (78  N.  C.  342).  162. 
Root  V.  McFerrin   (37  Miss.  17 

Dec.  49),  33. 
Rose  V.  Ingram  (98  Ind.  276),  113. 
Rose  V.  Newman  (26  Tex.  131),  110. 
Rose's  Estate  (63  Cal.  .346),  61. 
Roseman  v.  Miller  (84  111.297),  102. 
Ro.'s  V.  Luther  (4  Cow.  158, 15  Am.  Dec. 

341),  102. 
Rowe  V.  Griffith  (57  Neb.  488),  181. 
Rowley  V.  Towslev  (53  M  co.  .329),  187. 
Rozler  V.  Fagan  (46  III.  405),  277. 
Rucker  v.  Dooley  (49  III.  377,  95  Am. 

Dec.  614),  150. 
Rucker  v.  Dyer  (44  Miss.  591) ,  89. 
Ruckle  V.   Barbour   (48  lud.    274),  137, 

149. 
Rudolph  V.  Saunders  (111  Cal.  235),  105. 
Ruflolph  V.  Underwood  (88  Ga.  664),  1.J1. 
Rule  V.  Branch  (58  Mis^.  552),  71,  73. 
RurarlH  v.  St.  Alban's  Bank  (28  MiLn. 

202),  51,  64. 
Runnels  v.  Kaylor  (95  Ind.  503),  212. 
Rupert  V.  Jones  (119  Cal.  Ill),  126. 
Russell  V.  Rumsey  (35  11'.  362),  248. 
Russell  V.  Williamson  (67  Ark.  80),  108. 
Rutherford's  Heirs  v.  Claik's  Ueirs  (4 

Bush,  27),  39. 
Ryan  v.  Staples  (78  Fed.  Rep.  563),  135. 
Ryden  v.  Jones   (1  Hawks,  497,  9  Am. 

Dec.  660).  120. 
Ryder  v.  Flanders  (.39  Mich.  3.36),  61. 
Ryhlner  v.  Frank  (105  III.  326),  219. 


s. 


St.  199,  57 


Sackett  V.  Twining   (18   Pa. 

Am.  Dec.  599),  2,  143. 
Sager  v.  Mead  (171  Pa.  349),  ISO. 
Salmond  v.  Price   (13  Ohio,  368,  42  Am. 

Dec.  204),  15,168,186. 
Sander  v.  Russell  (86  Cal.  121,  21  Am.  St. 

Rep.  2S),  114. 

316 


TABLE  OF  CASES  CITED. 


Sanda  v.  Lynham  (27  Gratt.  291,  21  Am. 

Rep.  348),  204. 
Sandifer  v.  Grdntbam  (62  Miss.  412),  41. 
Sanford  v.  Granger  (12  Barb.  392),  54. 
Sargent  V.  Sturm  (23  Cal.   359,  83  Am. 

Dec.  118).  166. 
Satcber  v.  SatcUer's  Admr.  (41  Ala.  3'.t, 

91  Am.  Dec.  498),  71. 
Satterlee   v.   Mathewson    (2  Pet.  380), 

252. 
Satterlee  v.  Mathewson  (16  S.  &  R.191). 

232. 
Sahl  V.  Frame  (3  Tex.   Civ.  App.  5%). 

93. 
Saunders  v.  Gould  (124  Pa.  St.  237),  123. 
SauQdtrs  V.  Saunders  (2  Dev.  Eq.  26-2), 

193. 
Savage  V.  Benhara  (17  All.  119),  79. 
Savage  V.  Sternberg  (19   Wash.  679,  67 

Am.  St.  Kep.  7.51),  6. 
Scdlesv.  Curtmau  (58  S.  W.    Rep.    755, 

Tenn.  Ch.  App.),  259. 
Scarf  v.  Aldiicti  (97  Cal.  360,  33  Am.  St. 

Rep.  190),  64,  71,  85j. 
Schaf.r  v.  Causey  (76  Mo.  365),  170. 
Schiudel  v.  Keedy  (43  Md.  417),  3. 
Sc•hn^id<I•  V.  McFailand    (2  N.  Y.  459), 

72,74,  78. 
Schnell  v.  Chicago   (3b  111.  3S3,  87  Am. 

Dec.  304),  75. 
Sctuoeder  V.  Wilcox  (39  Neb.  1.S6),  80. 
Sch winger  V.  Hickok  (.53  N.  Y.  2d0),  167. 
Scott  V.  Bt-ntfcl  (2.^Giatt.  1),  153. 
Scott  V.   Dunn   (1  Dev.  &  Bat.  Eq.  427, 

30  Am.  Dec.  174) ,  167,  194. 
Soott  V.  Freeland  (7  s.  &  M  .409,  45  Am. 

Dec.  31('),  120. 
Scott  V.  Gordon's  Ex.    (14  La.   115,  33 

Am.  Dec.  578),  121. 
Scott  V.  McNeil  (1.54  U.  S.  34),  16. 
Scudder  v.  Stout  (10  N.  J.  Eq.  327),  39. 
Stsamster  v.  Blackstoek   (S3  Va.  232,  5 

Am.  St.  Rep.  262),  20. 
Sears  V.  Sears  (95  Ky.   173,   44   Am.   St. 

Rep  213),  82. 
Sebabtian  v.  Johnson  (72  111.  282),  110. 
Ste'ey  v.  Johnson  (Ol  Kau.  337,  78   Am. 

St.  Kep.  314).  98. 
Seldner  v.  MtCreery  (78  Md.  287),  39. 
Selsby  V.  K^dlon  (19  Wis.  17),  249,  2.50. 
Sermon  v.  Black  (79  Ala.  .507),  55,  6i;. 
Severn  v.  (Jelse  (6  N.  I).  523;,  12. 
Seward  v.  Dideeu  (10  Neb.  .58,  20  X.  W. 

Rep.  12).  34. 
Srxton  V.  Nevf-rs    (20   Pick.  451,32  Am. 

Dec.  225),  166. 
Sf  ymour  V.  Klckttis  f21  Neb.  240),  69. 


Sh<>erer  V.  Gates  (2  B.  Men.  453,  38  Am. 

Dec.  164),  6. 
Shafer  ^  .  Causey  (8  Mo.  App.  142,  76  Mo. 

365), 204* 
Shafer  v.  Eneu  (54  Pa.  St.  304) .  232. 
Shaffer  V.  Bledsoe  (118  N.  C.  279),  107. 
Share  v.  Aodi^rson  (7  Serg.  &  R.  ii,  10 

Am.  Dec.  421),  172. 
Sharky  V.  Bankston  (30  La.  Ann.  891), 

204. 
Sharpley  v.  Plant  (Miss.,  28  South.  Rep. 

799),  148. 
Shaw  V.  Ritchie  (136  U.  S.  54f),  71. 
sbeav.  Shea  (154  Mo.  699,  77  Am.  St. 

Rep.  779),  9. 
Shf-han's  Heirs  v.  Barnett's  Helis   (6 

Mon.  593),  271,  277. 
Sheldon  v.  Newton  (3  Ohio  St.  494),  71. 
Sheldon  v.  Wright  (7  Barb.  39,  6  N.  Y. 

497),  67,  153. 
Shelley  v.  La=h  (14  Minn.  498),  117. 
Shelton  v.  Hamilton   (23  Miss.   496,  57 

Am.  Dec.  149),  98. 
Sheppard  V.  Hliea  (49  Ala.  125),  114. 
Sherman  V.  Buick  (.32  Cal.  241,  91  Am. 

Dec.  577),  285. 
Sh-rrard  v.  Johnston  (193  Pa.  St.  166, 

74  Am.  St.  Rep.  6S0),  97. 
Sherwood  v.  Baker  (105  Mo.  472,  24  Am. 

St.  Rep.  399),  149,217. 
Sherwood  v.   Fleming   (25Tex.Supp. 

408),  251. 
Shirk  V.  Thomas   (121  Ind.  147,  16  Am. 

St.  Rep.  381),  135. 
Shirley  V.  Warfltld  (12  Tex.  Civ.  App. 

449),  82. 
Shoenberger  v.   School  Directors   (32 

Pa.  St.  .34),  286. 
Shonk  v.  Brown  (61  Pa.  St.  320),  2.32  2«8. 
Snort  V.  Porter  (44  Miss.  533),  161,  162, 

204. 
Short  V.  Sears  (93  lad.  505),  1S6,  190,  191. 
Short  V.  State  (79  Ga.  550),  102. 
Shrawder  v.  Suyder  (142  Pa.  St.  1),  248. 
Shriver  v.  Lynn,  (2  How.  [U.  S.]  57),  147, 
Sibley  V.  Wattle  (16  N.  Y.  165),  73. 
Sickles  V.   Ilogeboom   (10   Wend.  562), 

151. 
Sidway  v.  Lawson  (.58  Ark.  117),  218. 
Sldwall  V.  Schumacher  (99  111.  4.33),  101 
Signioud  V.  Bebber   (104   Iowa  4:'.1),45, 

128. 
Slgourney  v.  Sibley  (21  Pick.  101,32  Am. 

Dec.  248),  26. 
Sllloway  V.  Brown  (12  Allen  32),  128. 
Silvan  V.  Coffee  (20  Tex.  4,  70  Am.  Dec. 

371).  96. 


;}17 


TABLE  OF  CASES  CITED. 


Silverman  v.  GundelflDger  (82  Cal.  548). 

64. 
Simmons  v.    Saul    (138  U.   S.    439),  51, 

52.  • 

Simpson  v.  Bailey  (80  Md.  421).  52. 
Sinclair  v.  Jackson  (8  Cow.  543),  273. 
Sites  V.  Eldredge  (45  N.  J.  Eq.   632,  14 

Am.  St.  Rep.  769),  40. 
Sittlg  V.  Morgan  (5  La.  Ann.  574),  171. 
SItzman  v.  Pacquette  (13  Wis.  291),  51. 
Sloan  V.  Sloan  (,,!5  Fla.  53) ,  82,  84. 
Slocum  V.  English  (4  Tnomp.  &  C.  266, 

affirmed  62  N.  Y.  494),  48. 
Sledge  V.  Elliott  (116  N.  C.  712),  84. 
Smith  V.  Allen  (22  N.  J.  Eq.  572),  105. 
Smith  V.  Arnold  (5  Mason,  420),  2. 
Smith  V.  Bell  (107  Ga.    800,   73  Am.  St. 

Rep.  151),  103. 
Smith  V.  Biseallux  (83  Cal.  344),  67. 
Smith  V.  Callaghan   (66  Iowa,  552),  237 

251. 
Smith  V.  Crosby  (86  Tex.  15,  40  Am.  St. 

Rep.  818),  158. 
Smith  V.  Dobbins  (S7  Ga.  306),  125. 
Smith  V.  Drake  (23  N.  J.  Eq.  392),  120. 
Smith  V.  Finch  (1  Scam.  323),  153. 
Smith  V.  Gray  (116  N.  Car.  811),  175. 
Smith  V.  Henning  (10  W.  Va.  596),  39. 
Smith  V.  Kipp  (49  Minn  .  119,  125) ,  244. 
Smith  T.  Lookubill  (71  N.  C.  25) ,  125. 
Smith  V.  Meldreii  (107  Pa.  34H),  131. 
Smith  V.  Mundy  (18  Ala.  182,62  Am.  Dec. 

221),  114. 
Smith  V.  Nelson  (110  Mo.  552),  155. 
Smith  V.  Perkins   (81  Tex.   152,  26  Am. 

St.  Rep.  794),  123. 
Smith  V.  Randall  (6  Cal.  47,  65  Am.  Dec. 

475),  108. 
Smith  V.  Rice  (11  Mas%.  507),  7. 
Smith  V.  Schultz  (68  N.  Y.  41).  131. 
Smith  V.  Tracy  (36  N.  Y.  79),  176. 
Smith  V.  Warden  (19  Pa.  St.  429),  173. 
Smith  V.  West  (64  Ala.  34),  140. 
Smithy.  Wlldman  (178  Pa.  St.  245,   56 

Am.  St.  Rep.  760),  29,  83. 
Smith  V.  Woolfolk  (115  U.  8.  143) ,  28. 
Smitha  V.  Flournoy  (47  Ala.  345),  58. 
Snapp  V.  Snapp  (87  Ky.  554),  127. 
Sneed  v.  Hooper   (Cooke,  200,  5  Am. 

Dec.  691),  35. 
Snevely  v.  Low  (18  Ohio,  368),  71. 
Snider  v.  Coleman  (72  Mo.  568),  204. 
Snow  V.  Russell  (93  Me.  362),  74  Am.  St. 

Rep.  350),  91. 
Snowhill  V.  Snowhill   (3  N.  J.  Eq.  20), 

266. 
Snyder  v.  Ives  (42  Iowa,  157),  212. 


Soheir  v.  Mass.  Gen.  Hospital  (3  Cush. 

483),229,  266,  279,  280. 
Solomon  v.  Peters  (37  Ga.  255).  108. 
Sonnenberg  v.  Steinbach   (9S.  U.  518, 

62  Am.  St.  Rep.  886),  15. 
Soukup  V.  Union  I.  Co.  (84  Iowa,  418,  35 

Am.  St.  Rep.  317),  28. 
Southard  v.  Peny  (21  Iowa,  448,  89  Am. 

Dec.  587),  171. 
Southern  C.  L.  Co.  v.  Hotel  Co.  (94  Cal. 

217,  28  Am.  St.  Rep.  115),  104, 113. 
Soye  v.  Maverick  (18  Tex.  100),  44. 
Sparling  v.  Todd  (27  Ohio  St.  521).  117. 
Spauldlng  v.  Baldwin  (31  Ind.  376),  34. 
Speck  V.  Riggina  (40  Mo.  405).  154. 
Speet  V.  Pullman  P.  C.  Co.  (121  111.  33), 

143. 
Speet  V.  Wohlein  (22  Mo.  310),  140. 
Spellman  v.  D  )W  (79  III.  66),  53. 
Spence  v.  Parker  (57  Ala.  196),  42. 
Spencer  v.  Jennings  (114  Pa.  St.  618),  55. 
Spinks  v.  Glenn  (67  Gd.  744).  132. 
Spoor  v.  Coen  (44  Ohio  St.  497).  43. 
Spragg  V.  Shriver  (25  Pa.  St.  281,  64  Am. 

Dec.  698),  173. 
Spragins  v.  Taylor  (48  Ala.  520),  79,  139. 
Sprigg's  Estate  (20  Cal.  121),  79. 
Spring  V.  Kane  (86  III.  580) ,  71,  84,  88. 
Springer  V.  Shavender  (116  N.  C.  12,47 

Am.  St.  Rep.  791,  118  N.  C.  33,  54  Am. 

St.  Rep.  708),  16. 
Sprlngston  v.  Morris  (47  W.  Va.  50).  148. 
Stackhouse  y.  Zuntz  (41  La.  Ann.  415), 

104. 
Stafford  V.  Gallops  (123  N.  C.  19, 63  Am. 

St.  Rep.  815),  625. 
Stampley  v.  King  (51  Miss.  728).  25,  75. 
Stanley  v.  Noble  (59  Iowa,  666),  61. 
Staples  V.  Fairchild  (3  N.  Y.  41),  12. 
Staples  V.  Staples  (24  Gratt.  225),  133. 
Stmpp  V.  Toler  (3  Bibb,  450),  119. 
State  V.  Doherty  (60  Me.  504),  2,S3. 
State  V.  Founts  (89  Ind.  313),  110. 
State  V.  Johnston  (21  Mont.  155,  69  Am. 

St.  Rep.  645),  21. 
State  V.  Judge  (48  La.  Ann.  667),  130. 
State  V.  Newark  (3  Dutch.  197),  254. 
State  V.  Probate  Court(40  Minn.  296),48. 
State  V.  Rives  (6  Ired.  297),  111. 
State  V.  Ross  (122  Mo.  435),  21. 
State  V.  Squires  (26  Iowa,  340),  22.9,  252. 
State  V.  Stanley  (14  Ind.  409),  171. 
State  V.  Superior  Court  (15  Wash.  668, 

55  Am.  St.  Rep.  907),  21. 
State  V.  Towl  (48  Mo.  148),  140,  141. 
State  V.  Union  N.  B.   (145  Ind.  537,  57 

Am.  St.  Rep.  209),  20. 

318 


TABLE  OF  CASES  CITED. 


State  Bank  v.  Abbott  (20  Wis.  599).  2U. 
State  N.  B.  V.  Neel  (53  Ark.  110,  22  Am. 

St.  Rep.  185),  143. 
Stearns  v.  Edson  (6d  Vt.  269,  25  Am.  St. 

Rep.  758),  137. 
Steele's  Ex.  v.  Moxley  (9  Danfl,  139),  41. 
Stein  V.  Chambless  (18  Iowa,  474,  87  Am. 

Dec.  411).  113. 
Stephenson  v.  Maraalls   (11  Tex.  Civ. 

App.  162),  128. 
Stevens  v.  Enders  (1  Green,  271),  2e3. 
Stevens  v.  Hauser  (39  N.  Y.  302),  130. 
Stevenson's  Heirs  V.  McReary  (18S.& 

M.  9,  51  Am.  Dec.  102),  34. 
Stewart  V.  Griffith  (33  Mo.  23,  82  Am. 

Dec.  148),  266. 
Stewart  V.Mitchell  (10  Helek.  4«8),  12. 
Stewart  V.  Pettigrew  (28  Ark.  372).  217. 
Stewart  v.   Stotker  (13  Serg.  &  R.  199, 

15  Am.  Dec.  589),  96. 
Stewart  v.  Stokes  (33  Ala.  494),  217. 
Stewart  V.  Welton  (32  Mich.  56).  126. 
Stiles  V.  Wiednfr  (35  0hio   St.  555),  213. 
Stilwell  V.  Swarthont  (81  N.  Y.  109),  76. 
St.  Louis,  etc.,  Ry.   Co.  v.  Lowder  (138 

Mo.  533,  60  Am.  St.  Rep.  565),  6. 
Stockton  V.  Downey    (6   La.   Ann.  581), 

204. 
Stockton  B.  &  L.  Assn.  v.  Chambers  (75 

Cal.  332,  7  Am.  St.  Hep.  173),  15. 
Stollz's  Succession   (28  La.  Ann.   175), 

106. 
Stone  V.  Perkins  (86  Fed.  Rep.  616),  126. 
Stow  v.  Kimball  (28  III.  93),  57,62,79. 
Stowe  V.  Banks  (123  Mo.  672),  51. 
Strain  v.  Murphy.  49  lud.  .337),  155. 
Strang  v.  Beach  (11  Ohio  St.  283,  78  Am. 

Dec.  308),  214. 
Stroble  V.  Smith  (8  Watts,  280),  171,172. 
Strouse  V.  Drennan  (41    Mo. 298),  54, 106. 
Stryktr  v.  Vandt  rbllt  (27  N.  J.  Law,  68), 

153. 
Stuart  V.  Allen  (16  Cal.  473,  76  Am.  Dec. 

551),  66,  63,  67,69. 
Stuart  V.  Reed  (91  Pa.  St.  287),  132. 
Sturges  V.  Vanderbllt  (73  N.  Y.  384),  10. 
Sturgls  V.  Fay  (16  Ind.  429,  79  Am.  Dec. 

440),  10. 
Stults  V.  Brown    (112  Ind.  .370,  72   Am. 

St.  Rep.  190),  206,  2ii6. 
Styles  V.  Harrison  (99Tenn.  128,63  Aai. 

St.  Rep.  h24),  26. 
Stymetz  V.  IJrooks  (10  Wend.  206),  99, 

lui. 
Summereett  v.   Summeraett    (40   Ala. 

6%,  91  Am.  Dec.  491),  84. 
Sumner  v.  Parker  (7  Mass.  79),  7,  51. 


Sutton  V.  Sutton  (13  Vt.  71).  18. 
Suvdam  v.  Williamson  (24  How.  [U.  S.j 

427),  273. 
Swan  V.  Stephens  (99  Mass.  7),  128. 
Swan  V.  Wheeler  (4  Day,  137),  110. 
Sweeney  v.  Warren    (127   N.   Y.  526,  24 

Am.  St.  Rep.  468),  181. 
Swiggart  V.  Harber  (4  Scam.  3d4,  .^9  Am. 

Dec.  41S)  96. 
Sydnor  v.  Roberts  (13  Tex.  598,  65  Am. 

Dec.  84),  87. 
Sypert  v.  McCowen  (28  Tex.  038),  149. 


Tacoma  G.  Co.   v.   Draham   (8   Wash. 

263,  40  Am.  St.  Rep.  907),  12. 
Taflts  V.  Manlove  (14  Cal.  50,  73  Am 

Dec.  610),  176. 
Tait  V.  Norton  (84  U.  S.  746),  41. 
Tanuer  v.  Stine  (18  Mo.  569,  59  Am.  Dec 

320),  155. 
Tarbell  v.  Parker  (106  Mass.  347),  48. 
Tate  v.  Pensacola  G.,  etc.,  Co.  (37  Fla. 

439,  53  Am.  St,  Rep.  251),  218. 
Tate  V.  Stooltzfoos  (16  S.  &  R.  35,  16  Am. 

Dec.  546),  232. 
Tatumv.Croom    (60  Ark.  487).  156,  214. 
Taylor  V.  Connor,  7  InJ.  115).  168. 
Taylor  v.  Galloway  (1  Oulo,  232,  13  Am. 

Dec.  605),  41. 
Taylor  v.  Place  (4  R.  I.  324),  228. 
Taylor  V.  Taylor  (83  N.  C.  116),  102. 
Taylor  V.  Walker  (1  Helsk.  734),  33,  73. 
Temples  v.Ottiu  (60  Miss.  478),  Ul. 
Templeton  v.   Falls     L.  &  C.   Co.    (77 

Tex.  55),  60,51. 
Templeton  v.  Ferguson  (89  Tcx.  47),  31, 

34,81. 
Tenny  v.  Poor  (14  Gray,  502, 77  Am.  Dec. 

340),  43,  58. 
TerreU  v. Weymouth  (32  Fla.  255,  37  Am . 

St.  Rep.  94),  181. 
Terret  v.  Taylor  (9  Cranch,  43),  .322. 
Terrell,  In  re  (52  Kan.  29,  39  Am.  Si.  Rep 

327),  26. 
Terwjlllger  v.  Brown  (44  N.  Y.  237),  121. 
Teverbaugh  v.  Hawkins  (82  Mo.  l50),53. 
Tevis  V.  Pitcher. (10  Cal.  465),  15. 
Tnacker  v.  Devol  (50  Ind.  30),  115. 
Thain  V.  Rudisill  (126  Ind.  276),  134. 
Thatcher  V.  Powell  (6   Wheat.  119),  12. 
The  Monte  Allegre  (9  Wheat.  666),  168. 
Thomas  V.  DaviUsou  (76  Va.   344),  143, 

164. 
Tiiomas  v.  Docklns  (75  Ga.  347),  213. 
Thomas  v.  Le  Barron  (8  Mete.  363),  US' 
163,  154. 


311) 


TABLE  OF  CASES  CITED. 


Thomas  V.  PuUis    (56  ]\[o.  217),  267,  268. 
Tnoinus  v.  Thomas  (87  Ky.  348),  150. 
Thomas  v.  Thompson  (IW  Ind.  8'.ll),  83. 
Thomas  V.  White   (3  Litt.    177,14  Am. 

Dec.  56),. S6. 
Thomson  v.  Blanchard  (2  Lea,5'28),  82. 
Thompson  v.  Uoardman   (1  Vt.  367,  18 

Am.  Dec.  684),  37. 
Thompson  v.  lUirge  (60  Kan.  549,  72  Am. 

St.  Kep.  369),  108,  ll.'i,  142,  148,  145. 
Thompson  v.  Morgan  (6  Minn.  292),  251. 
Thompson  v.  IMunser   (15  Tex.   523,   65 

Am.  Dec.  176),  162. 
Thorn  v.  Ingram  (25  Ark.  58),  143,  144. 
Thornton  v.  McGrath  (I  Duv.  349),  248, 

255. 
TiioiQton  V.  Mulqulnne  (12  Iowa,  540), 

89. 
T  ireft  V.  Fritz  (7  III.  App.  55),  161. 
Tnrelkelcls  v.  Campbell  (2  Gruti.  V-'S,  44 

Am.  Dec.  384),  164. 
Thurber  v.  Miller  (11  S.  D.  124),  21. 
Ttiurston  v.  Thurston  (6   R.  I.  296),  266. 
Tiernan  v.  Beam  (2  Ohio,  465,  15   Am. 

Dec.  557),  210. 
Tiernan  V.  Wilson   (6  Johns.  Ch.  411), 

124. 
Tilley  V.  Bridges  (105  III.  336),  162. 
Tilton  V.  Pearson  (67  III.  App.  373),  84. 
Tindal  V.  Drake  (60  Ala.  170),  269. 
Tippettv.  Mize   (30  Tex.   365,   94  Am. 

Dec.  313),  40,41,111. 
Tpton  V.  Powel  (2  Coldw.  19),  149. 
Todd  V.  Dowd  (1  Mete.   [Ky.]  281),  161. 
Todd  V.  Flournoy    (56  Ala.  99,  28  Am. 

Rep.  758),  269. 
Tongue  V.  Morton  (6  H.  &  J.  21).  71. 
TooUy  V.  Gridley  (3  S.  &  M.  493,  51  Am. 

Dec.  628),  173. 
TowlB  V.  Forney  (14  IST.  Y.  423),  273. 
Town  V.  Town   of  Blackberry  (29  111. 

137),  179. 
Townsend  v.  Gordon  (19  Cal.  188),  63. 
Towusend  v.  Str  ele  (86  Ala.  580),  57. 
Townsend  v.  Tallant  (33  Cal.  45,91  Am. 

Dec.  617),  74,  76,  77,  147, 175. 
Tuwnshend   v.  Thompson   (139  N.   Y. 

152),  135. 
Tracy  v.  Roberts  (83  Me.  310,  51  Am.  St. 

Rep.  394),  89,  108,181. 
Traders' N.  B.  v.  Schorr  (20   Wash.   1, 

72  Am.  St.  Rep.  17),  127. 
Trent  v.  Trent  (24  Mo.  307),  60. 
Tripp  V.  Cook  (26  Wend.  143),  165. 
Trumble  V.  Williams(18  Neb.  144),  57,62. 
Truss  V.  Old  (6  Rand.  556,  18  Am.  Dec. 

784),  37. 


Trustees   N.   Y.    P.    E.    Pub.   School, 

Matter  of  (31  N.  Y.  592),  273. 
Tucker  v.  Harris  (13  Ga.  1,  59  Am.  Dec. 

488),  34. 
Turuey  v.  Turney  (24  111.  625),  27. 
Turney  v.  Young  (22  III.  253),  57. 
Tuttle  V.  Heavy  (50  Barb.  .334) ,  37. 
Turner  v.  Crane  (19  Tex.  Civ.  App.  369), 

157. 
Turner  v.  Sawyer  (150  U.  S.  578),  151. 
Turner  V.  Shuffler  (108  N.  C.  642),  80. 
Tuttle  V.  Jackson  (6  Wend.  213),  151. 
Twinan  v.  Stuart  (4  Lans.  263).  126. 
Tynell  v.  Morris   (1   D.  |&  B.  Eq.  559), 

116. 

u. 

ITnderwood  V.  Lilly  (10  S.  &R.  97),  228, 

232. 
U  .Ut-rwood  V.  McVeigh  (23  Gratt.  409), 

132. 
United  L.  T.  Co.  v.  Boston  S.,  etc.,  Co. 

(147  U.  S.  431),  134. 
United  States    v.   Arredondo   (6    Pet. 

709),  7. 
United  States  V.  Cruikshank   (92  U.  S. 

542,  3  Cent.  L.  J.  295,  8  Ch.  L.  N.  233), 

253. 
United  States  v.  Insley    (54  Ftd.   Rep. 

221),  150. 
United  States  T.  Co.  v.  Stevens  (67  Md. 

156).  f'S. 
Unknown  Heirs  v.  Baker  (23  III.  490),  7. 


Vail  V.  Reinhart  (105  Ind.  6),  43. 

Valie  V.  Bryan  (19  iMo.  423),  43. 

Valle  V.  Fltmlng    (19  Mo.   454,  61  Am. 

Dec.  566),  34,  72,  140,  175. 
Valle's  Heirs  v.   Fleming's  Heirs   (29 

Mo.  164,  77  Am.  Dee.  557),  194,  195, 198. 
Van  Alstyne  v.  Wimple   (5  Cow,  162), 

148. 
Van  Campen  v.  Soyder  (8  How.  [Misa.] 

66,32  Am:  Dec.  311),  95. 
Vandever  v.  Baker  (13  Pa.  St.  121),  2. 
V^nHoone,   Petitioner  (18  R.  I.  389), 

273. 
Van  Horn  v.  Ford  (16  Iowa,  578),  43. 
Varner  v.  Bevil  (71  Ala.  286),  16. 
Verdln  v.  Slocum  (71  N.  Y.  345),  161. 
Verry  v.  McClellan  (6  Gray,  535,  66  Am. 

Dec.  423),  58. 
Vick  V.  Doolittle  (69  III.  102),  126. 
Vick  v.  Mayor  (1  How.    [Miss.]   379,  31 

Am.  Dec.  169),  72. 


320 


TABLE  OF  CASES  CITED. 


Virginia,  etc., I.  Co.  t.  Cottrell  (85  Va. 

857,  17  Am.  St.  Rep.  108) ,  1G6. 
Vlsek  V.  Doolittle  (69  Iowa,  620),  127. 

W. 

Wade  V.  Carpenter  (4  Iowa,  361),  140. 
Wakefield  t.  Campbell  (20  Me.  3^3,  37 

Am.  Dec.  66),  124. 
Walbridgev.  Day  (.SI  111.   37<.»,  83  Am. 

Dec.  227),  41. 
Waldron  V.  Letson   (15  N.  J.   Eq.  126), 

216. 
Wales  V.  Wlllard  (2  Mass.  120),  27. 
Walker  v.  Cottrell  (6  Bax.  257),  11. 
Walker  v.  Goldsmith  (14  Or.  125),  87. 
Walker  v.  McKnight  (16  B.  Men.  467,  61 

Am.  DeCK,  190),  87. 
Walker  V.  Morris  (14  Ga.  323),  79. 
Walker  v.  Mulvean  (76  111.  18),  173. 
Walker  v.  Sauvient  (3  Cent.  L.  J.  445, 

92  U.  S.  90),  253. 
Wallace  v.  Feely  (10  Daly,  331),  229. 
Wallace  v.  Hall  (19  Ala.  367),  140. 
Wallace  v.  Loomis  (97  U.  S.  146),  87,  132. 
Wallace  v.  Nichols  (56  Ala.  321),  133. 
Wallace  v.  Sawyer  (90  Ind.  499).  176. 
Wallace  v.  Swlnton  (64  N.  Y.  IfcS),  99. 
Wallowa  N.  B.  v.  Riley  (29  Or.  289,54 

Am.  St.  Rep.  794),  126. 
Walpolev.  Elliott   (18  Ind.  258,  81  Am. 

Dec.  35H),  229. 
Walsh  V.  Andtrson  (135  Maps.  65).  134. 
Waltiop  V.    Friedman   (90   Ala.    157,  24 

Am.  St.  Ktp.  775),  96. 
Walton  V.  Cox  (67  Ind.  164),  186. 
Ward  V.  Brewer  (19  111.  291,68  Am.  Dec. 

5%),  212. 
Waid  V.  Lowndes  (96  X.  C.  367).  80,  152, 

229. 
Ward  Y.  Oaks  (42  Ala.  22.S) ,  17. 
Ware  v.  Bradford  (2  Ala.  676,  a6  Am. 

Dec.  427),  107. 
Ware  V.  Johnson  (55  Mo.  SCO),  210. 218. 
Wareb.me  v.  Graf  (H3  Hd.  98),  2. 
Warfleld    Estate    (22  Cat.   51,    83  Am. 

Dec.  49),  18. 
Warn*  r  T.  Helm  (1  Glim.  220),  188. 
Warren  v.  Union  Bank  (157  N.  Y.  259), 

68  Am.  St.  Rep.  777).  36. 
Washbutn  v.  Carmicbael  (32Iowa,475), 

71.  7K 
Waslibnrn  t.  Grfen  (1.33  U.  S.  .^0),  184. 
Washington   v.   McCaugtian  (M  .Mlsu. 

304),  49,89,  161,  162. 
Wi-tklnn  V.  Holman  (IG  I'et.  62),  270,  271, 

277,  2S9. 


Watkius   L.  M.  Co.  v.  Mullen  (Kan. 

App.,  54  Pac.  Rep.  921),  20. 
Watson  V.  Birch  (2  Ves.  Jr.  51),  165. 
Watson  V.  Mercer  (S  Pet.  88),  248.  252. 
Watson  V.  Gates  (58  Ala.  647).  269. 
Watson  v.  Reisslg  (24  111.  28i).  166. 
Watson  V.  Tromble  (.33  Neb.  459,  29  Am 

St.  Rep.  492),  143.  164. 
Watson  V.  Watson  (10  Conn.  77),  155. 
Watt  V.  Brookover  (35  W.   Va.  323,  29 

Am.  St.  Rep.  811),  30. 
Wattles  V.  Hyde  (9  Conn.  10) ,  56. 
Watts  V.  Cook  (24  Kan.  278),  92,  93. 
Watts  V.  Gallagher  (97Cal.  47),  126. 
Watts  V.  Scott  (3  Watts,  79),  140. 
Watts  V.  Waddle  (6  Pet.  369),  15. 
Weaver  v.  Guyer  (59  Ind.  195),  124. 
Wearer  V.  Peasley  (163  111.  254,  54  Am. 

St.  Rep.  469),  102. 
Wtbb  V.  Keller  (39  La.  Ann.  55),  82. 
Weed  V.  Donovan  (114  Mass.  183),  249. 
Weed  V.  Edmonds  (4  Ind.  468),  59. 
Wehrle  v.  Wehrle  (39  Ohio  St.  365),  128. 
Weister  v.  Hade  (52  Pa.  St.  480),  264. 
Weitman  v.  Tbiot  (64  Ga.  11),  43. 
Welch  V.  Louis  (31  111.  446),  88. 
Weich  V.  Rattern  (47  Iowa,  147),  98. 
Wellman  V.  Lawrence   (15  Mass.  326), 

113,  149. 
We  Is  V.  Chaffln  (60  (ia.  677),  42. 
Wells  V.  Polk  (36  Trx.  120),  83. 
Wells  V.  Steckelberg    (."i^   Neb.   597,  66 

Am.  St.  Rep.  529),li;3. 
Welle  County  T.  Fabler  (132  Ind.  426), 

230. 
West  V.  Cocbran  (104  Pa.  St.  4&2)    1.58. 
West  V.  Waddell  (33  Aik.  575),  122. 
Westhelmtr  v.  Reed  (15  Neb.  662),  134. 
Weston  V.  Clark  (37  Mo.  673),  95. 
W^y^^  T.  Stcond  Nat.  Bank   (57  Ind. 

198),  80. 
Wheeling  P.  Co.  T.  Levy  (48  La.  Ann. 

777),  96. 
I^hite,  Kx parte (laSe-v.  146,37  Am. Rep. 

406) ,  26. 
White  V.  FootP,  L.  ft  M.  Co.  (29  W.  Va. 

.385,  6  .Vm.  St.  Rep.  650).  6. 
White  V.  Iselin  (26  Minn.  487).  121. 
White  V.  Leeds  I.  Co.  (72  Minn.  852,  71 

Am.  St.  Rep.  488).  1:«. 
White  V.  Luning  (93  U.  8.514).  l.W. 
White  V.  Simpson  (124  Ala.  238).  32. 
White  V.  White  (130  Cai.  597,  80  Am.  St. 

U   p.   150),  22. 
White  Mti.  K.  R.    ▼.    White   Mts.  R.  R. 

(50  N .  H  .  66) ,  246. 
Whitman  v.  Fisher  (74  III.  147),  ,34,  133. 


(21) 


321 


TAHLK  OF  CASES  CITED. 


Whitman  v.  Taylor  (60  Mo.  127),  87. 
AVhitney  v.  Hanover  N.   B.   (71  Mlsa. 

1109),  21. 
Wickiser  v.  Cook  (S5  111.  68),  186. 
VVier  V.  Uavls  (i  Ala.  442),  116. 
Wight  V.  WallDaum  (39  111.  554),  18. 
Wllchintky  v.  Cavender  (72  Mo.  192), 

168. 
Wilcox  V.  Baben  (24  Neb.  368) ,  143. 
Wildes  V.  Vanvcorhls   (15  Gray,  139), 

248. 
Wiley  V.  White  (3  Stew.  &  P.  355),  89. 
Wllkereon  v.  Alien  (67  Mo.  502),  145. 
Wilkerson    v.    Schoonmaker   (77    Tex. 

615, 19  Am.  St.  Rep.  803),  31. 
Wilkinson  v.  F.lby  (24  Wis.  441),  89,  175, 

181. 
Wilkinson  v.   Leland   (2  Pet.  556),  220, 

227,  2S9. 
Wilkinson  v.  Ward  (42  111.  App.  541), 92. 
Willamette,  etc.,  Co.  v.  Hendrix,  (28 

Or.  485,  52  Am.   St.  Rep.  800),  10,  33, 

94,  138,  147. 
Willard  v.  Xason  (5  Mass.  241),  130. 
WilUrd  V.  Willard  (56  Pa.  St.  12-j),  173. 
Williams  v.  Childress  (25  Miss.  78),  58. 
Williams  V.  Foilett  (17  Colo.  54),  13. 
Williams  v.  Glenn's  Admr.  (87  Ky.  87, 12 

Am.  St.  Rep.  481),  164,  165. 
Williams  v.  Ilaynes  (77  Tex.  282, 19  Am. 

St.  Rep.  752),  32. 
Williams  v.  Lash  (8  Minn.  496),  117. 
Williams  V.  Millir  (16  Conn.  144),  126. 
Williams  V.  Morton  (38  Me.  47,61   Am. 

Dec.  229),  89. 
Wllllaui8  V.  Reed  (5  Pick.  480) ,  89. 
Williams  v.  Williams  (49  Aid.  439),  38. 
Williams  V.  Williams    (2    DeV.    Kq.    69, 

22  Am.  Dec.  729).  193. 
Williamson  v.   Bail    (8    Dow.   [U.    S.] 

566),  273. 
Williamson  V.  Berry  (8  How.    [U.   S.l 

495),  88,  110,  140,  273. 
Willlanisou  v.  Branch   Bank    (7     Ala. 

906),  36. 
Williamson  y.   I.   P.   Congregation    (8 

How.  [U.  S.]  565),  273. 
Williannon  v.  LBzarus  (66  Ark.  226,  74 

Am.  St.  Rep.  91),  248. 
Williamson  v.  Suydam  (6  Wall.  723), 273. 
Williamson  v.  Warren  (55  Miss.  199),  62. 
Williamson  V.  Wi.liamson    (3  S.   &  M. 

715,41  Am.  Dec.  636),  89,  204,269,278. 
Williamson  V.  Williamson     (52      Miss. 

725),  113,  114. 
Williamson  V.  Woodman   (73  Me.  163), 

154. 


Willis  V.  Hodson  (79  Md.  327),  241. 
Willis  V.  Nicholson   (24  La.  Ann.  545), 

143. 
V/illiamson  v.  Pauley  (116  Cal.  675),  57. 
Willis  V.  Cowper  (2  Ohio,  124),  15. 
Wilmerding,  Inre  (117Cal.  281,  284),  292. 
Wilmore  v.  Stetler  (137  lod.  127,  45  Am. 

St.  Rep.  169),  170,  173,  180,  181. 
Wilson  V.  Armstrong   (42    Ala.   168,  94 

Am.  Dec.  635),  55. 
Wilson  V.  Bigger  (7  AV.&S.  HI),  172, 173. 
Wilson  V.  Campbell  (33  Ala.  249,  70  Am. 

Dec.  586),  104. 
Wilson  V.  Hastings  (66  Cal.  243),  61,68. 
Wilson  V.  Holt   (83  Ala.  528,  3  Am.  St. 

Rep.  768),55,  56, 180,  205. 
Wilson  V.  St.  Louis,  etc.,  Co.    (108  Mo. 

.5>-8,  32  Am.  St.  Bep.  21),  lu. 
Wilson  V.  Twitty  (3  Hawks,  44,  14  Am. 

Dec.  569),  131. 
Winchester  V.Winchester  (1  Head, 460), 

87. 
Windsor  V.  McVeigh  (93  U.  S.  274),  28. 
Wing  V.  Dodge  (80  III.  564),  64. 
WingtTttr  v.Wiugerter  (71  Cal.  105),  48. 
Winslow  V.  Crowell   (32   Wis.  639),  204. 
Winston  v.  McLendon  (43  Miss.  554),  72, 

73. 
Wipff  V.  Herder  (6  Tex.  Civ.  App.  685), 

121. 
Wisdom  V.  Parker  (31  La.  Ann.  52),  132. 
Wisner  v.  Brown  (50  Mich.  653),  73. 
Wistar  v.  Foster  (46  Minn.  484,  24  Am. 

St.  Rep.  241),  248. 
Withers  V.  Buckley   (20  How.    [U.  S  ] 

84),  252,  261. 
Withers  V.  Patterson    (27  Tex.  499,   8  1 

Am.  Dec.  643),  7,  16,51,  54. 
Wittenbfick  V.  Wheadon    (128  Cal.  150, 

79  Am.  St.  Rep.  .32),  44. 
Wood  V.  Augustine  (61  Mo.  46),  105. 
Wood  V.  Colvin  (2  H  II,  566,  38  Am.  Dec. 

588),  95. 
Wood  V.  Crawford  (18  Ga.  526),  34. 
AVood  V.  McChesney    (40  Barb.  417),  57. 
Wood  V.  Morehouse   (45  N.  Y.   366),  99, 

101. 
Woodbury  v.  Parker  (19  Vt. '308,47  Atri; 

Dec.  605),  121. 
Woodman  v.  Bodflfh  (25  Me.,  317),  130. 
AVooUruff  V.  Cook  (2  Edw.Ch.  259),  54. 
Woods  V.  Monroe  (17  Mich.  233),  64,  77. 
Woodstock   I.   Co.   V.  Fulleuwider  (87 

Ala. -584,  13  Am.  St.  Rep.  73),  175. 
WooHord  V.  Dugan  (2  Ark.  131,  35  Am. 

Dec.  52),  102. 
Woottra  V.  Arledge  (54  Tex.  395),  130     ' 


522 


TABLE  OF  CASES  CITED. 


Wooters  V.  Jose  ih  (137  111.  113,  31  Am. 

St.  Rep.  355),  100,  l(i2. 
Worley  v.  Taylor  (21  Or.  5S9,  28  Am.  St. 

Rep.  771).  39. 
Worten  v.  Howard  (2  S.  &  M.  527),  116. 
Worttiington  T.  Dunkin   (11  lad.   515), 

61. 
Worthington  v.  McRoberts  (9  Ala.  297), 

162. 
Wortinan  v.  Skinner  (1  I5eas.  35S),  217. 
Wright  V.  Kdwards  (10  Or.  298),  61. 
AVriglit  V.  Ellison  (I  Wall.  16),  187. 
Wright  V.  Franklin  Bank  (51)  Ohio  St. 

&J),  125. 
Wright  V.  Hawkins  (28  Tex.  452),  251. 
Wright  V.  Ware  (50  Ala.  549).  .59,  64,  85. 
Wright  V.  Young  (6  Or.  87),  153. 
Wright  V.  Zeigler  (1  Kelly,  324),  S9. 
Wyant  v.  Tuthill  (17  Neb.  495),  113,  145. 
Wyatt's  Admr.  v.  Kambo   (29  Ala.   510, 

68  Am.  Dec.  89),  53,  S3. 
Wyman  v.  Campbell   (6  Porter,  319,  31 

Am.  Dec.  677),  i'3. 
Wynns  v.  Alexander  (2  D.  &  B.  Eq.  58), 

116. 


Y. 


Yaboro  v.  Brewster  (38  Tex.  397),  128. 
Yoemans  v.  Brown  (8  Met.  51),  77,  68. 
Yomans  v.  Bird  (81  Ga.  340),  1C5. 
Young  V.  Dowling  (15  III.  481,485),  212. 
Young  V.  Downey  (145  Mo.  250,  68  Am. 

St.  Rep.  568),  77,  147. 
Young  V.  McClurg  (9Gratf.  336),  164. 
Young  V.  Smith  (76  Am.  Dpc.  81),  113. 
Youug  V.  Young  (12  Lea,  335),  61. 
Youngblood  v.  Cunningham    (38  Ark. 

571),  102. 
Young's  Admr.  v.  Raibnne  (16  X.  J.  Eq. 

224,84  Am.  Dec.  151),  8, 


Z. 


Zebach  V.  Smith  (3  Bin.  60,  5  Am.  Dec. 

352),  41. 
Zeigler  v.  Shomo  (78  Pa.  St.  357),  132. 
Zlller  V.  Gerichten  (111  Cal.  73),  81,  145. 
Zingsemv.  Kidd  (29   N.   J.    Eq.  516), 

217. 
Zuvtr  V.  Clark  (104  Pa.  St.  222),  106. 


ii-2:] 


INDEX. 

[the  references  are  to  sections.] 
A. 

ACQUIESCENCE, 

estoppel  arising  from,  43.. 
ADJOURNMENT, 

of  sale,  action  of  oflBcer  la  directing  or  refusing  does  not  make  the  sale 
void,  30. 

of  sale,  notice  to  be  given,  30. 
administbation, 

grant  of,  when  void,  2. 

on  estate  of  living  person,  4. 

administrator, 

acting  also  as  guardian,  17. 

sale  to,  or  to  attorney  of,  33. 

with  will  annexed,  cannot  exercise  discretionary  power  of  sale,  9. 

administrators  and  executors, 

appointment  of,  whether  may  be  collaterally  questioned,  10. 

attorneys  of,  whether  may  purchase  at  sales  by,  33. 

authority  of  is  limited  to  state  where  appointed,  10. 

constitutionality  of  acts  ratifying  sales  by,  56-62. 

constitutionality  of  special  acta  authorizing  sales  by,   without  order  of 

court,  63-72. 
conveyances  by,  46. 

conveyances  by,  when  compelled  or  reformed  in  equity,  55. 
conveyances  by,  when  void  because  not  In  proper  form,  47. 
If  appointment  of,  Is  void,  a  sale  by.  Is  equally  so,  2, 10. 
must  qualify  before  acting,  10. 

new  cannot  be  appointed  without  removing  old,  7. 
personalty,  sales  by  of  were  never  void  at  the  common  law,  9. 
purchase  by,  at  their  own  sales,  83. 
purchase  by  attorney  of,  33. 
sale  by  foreign,  10. 

sales  made  by,  in  bad  faith  or  for  an  unauthorized  purpose,  '■). 
validity  of  acta  of  administrator,   how  affected  by  subsequent  probate  of 

will, 4. 
when  may  make  KHiee  without  leave  of  court,  'J. 
wife  of  may  purchase  at  sale  by,  33. 

325 


INDEX, 

ADVERSE  rOSSESSlOX, 

does  QOt  make  j  iiJicial  or  execution  sale  of  realty  void,  3S. 

AI'l'EAL, 

execution  sale  pending,  when  void,  la. 

ArPRAISE»[ENT, 

guardian's  sale  for  less  tlian  the  amount  required  by,  27. 

salrt  without,  whether  void,  'J". 
ATTACHMKNT, 

judgment  based  on,  3. 
ATTACHMENT  PROCEEDINGS, 

affidavit,  absence  of  or  defects  in,  4. 

personal  judgment  cannot  be  supported  by,  3. 

summons  or  other  process  must  be  served  in,  3. 

writ  issued  when  plaintiff  was  not  entitled  thereto,  3. 

ATTORNEYS, 

of  executors  and  administrators,  purchases  of  at  sales  mads  by,  33. 

purchases  by,  when  must  be  held  in  trust  for  their  clients,  33. 
AUCTION, 

failure  to  sell  at,  32. 

sale  at,  when  no  bystanders  are  present,  32. 
AUCTIONEERS, 

acts  of,  in  making  sales,  to  what  extent  valid,  29. 

B. 

BID. 

non-payment  of,  41. 

release  from  because  of  defects  in  the  proceedings,  48. 
release  from  because  of  defects  in  the  title,  48. 
resisting  payment  of,  48. 
when  and  by  whom  may  be  made,  32. 
BOND, 

approval,  absence  of,  effect  on  the  sale,  22. 

f.iilure  to  give,  held  fatal  to  probate  sale,  -2. 

order  attempting  to  excuse  filing  of,  Siaid  to  be  void,  22. 

presumption  of  filing  of,  22. 

c. 

CEMETERIES, 

execution  sales  of  are  void,  35. 
CERTIFICATE  OF  SALE, 

defects  in,  or  failure  to  record,  41c. 
CLASSIFICATION, 

of  void  sales,  1. 
COLLATERAL  ATTACKS, 

none  allowed  to  show  error  or  fraud  in  granting  order  of  sale,  14,  20. 

on  jurisdiction  of  courts  generally,  8. 

on  jurisdiction  of  probate  courts,  4,  8. 

COLLUSION, 

whether  presumed  because  no  third  persons  were  present  at  the  sale,  32. 

COMMISSIONERS. 

to  make  sales,  power  of  courts  to  appoint,  29. 

326 


ixdp:x, 
coxfirmatiox  ofsile. 

by  subsequent  legislation,  5),  fi2. 
conveyance  witbont  is  void,  43. 
does  not  validate  void  sales,  44. 
effect  of  as  an  adjudication,  44. 
failure  of  clerk  to  enter  order  of,  43. 
form  of  entry  of,  42. 

fraud  may  be  shown  notwithstanding,  44. 

may  be  made  to  a  person  substituted  in  place  of  original  bidder,  44. 
necessity  of,  43. 
notice  of  motion  for,  42. 
order  of  sale  cannot  be  supplied  by,  44. 
precludes  future  objections  to  title,  48. 
presumption  of,  43. 
presumptions  arising  from,  44. 
refusal  of  because  the  title  is  not  marketable,  48. 
release  by  purchaser  after,  48. 
relief  in  equity  against,  44. 
reversal  of  destroys  the  purchaser's  title,  44. 
vacatlug  on  motion,  44. 
what  irregularities  are  waived  by,  44. 
COXSTITUTIOX  OF  THE  UNITED  STATES, 
prohibition  of  ex  post  facto  laws,  62. 

prohibition  of  laws  Impairing  obligations  of  contracts,  62. 
protection  of  vested  rights,  and  of  life,  libeity,  and  property.  6-2. 
COSSTITUTIONAL  LAW, 

void  sales,  owner  can  be  required  to  repay  puichtser,  49a. 
CONSTITUTION  ALITV, 

curative  statutes,  limitations  on  the  power  of  the  Irgislaturo  to  enact,  69. 
divorce,  void,  power  of  congress  to  validate,  58. 
foreign  executors,  statutes  validating  sales  made  by,  58. 
of  general  laws  authorizing  compulsory  sales,  64. 
of  laws  confirming  judgments  irregularly  entered,  57. 
of  laws  confirming  sales  void  for  fraud,  60. 
of  laws  confirming  sales  void  for  informalities,  59,  60. 
of  laws  confirming  void  judgments,  58. 

of  liws  taking  property  from  one  person  and  giving  it  to  another,  56. 
of  laws  revoking  and  annulling  prior  grants,  56. 
of  special  laws  authorizing  involuntary  sales  denied,  65. 
of  special  laws  authorizing  iavoluntary  sales  sus-tained,  66,  67. 
of  special  laws  authorizing  sale  by  person  not  a  guardian,  68. 
of  special  laws  authorizing  sale  of  property,  limitations  on,  72. 
of  special  laws  authorizing  sale  of  property  of  co-tenants,  71. 
of  special  laws  authorizing  sale  of  property  to  pay  debts,  69. 
of  special  statutes  authorizing  sale  of  property  of  persons  not  under  dis- 
ability, 7-2. 
of  statute  authorizing  sale  of  contingent  or  uncertain  ii-terests.  66. 
of  statute  autlioriziDg  sale  of  homestead  of  an  Insane  person,  66. 
of  statute  authorizing  sale  of  property  on  the  ground   that  it  is  for  the  best 

interest  of  those  Interested,  72. 
of  statutes  limiting  the  rights  of  heirs,  72. 
probite  sales,  void,  when  may  be  validated,  58. 

void  judgmentj  and  judicial  proceeding,  when  may  be  validated,  58. 
CONVEYANCES, 

are  esaentiul  to  transfer  legal  title,  45. 

by  officer  or  hi  j  deputy  after  expiration  of  hlsofllclal  term,  46. 

327 


INDEX. 

CONVEYANCKS-Contlnued. 

compelHnt;  execution  of  second  where  first  wasdefective,  55. 

compelling,  in  equity,  55. 

description  In,  sufficiency  of,  and  how  construed,  47. 

estoppel  to  take  advantage  of  failure  to  executH,  55. 

form  of,  47. 

lost,  relief  upon,  55. 

made  before  payment  of  nurchase  money,  46. 

mistaken  recitals  do  not  make  void,  47. 

reforming,  in  equity,  55. 

special  statutes  authorizing,  66. 

time  within  which  reformation  of  may  be  compelled,  55. 

to  persons  not  authorized  to  receive,  are  void,  46. 

to  whom  may  be  made,  46. 

when  void  because  not  in  proper  form,  47. 

who  may  make,  46. 

within  what  time  may  be  made,  46. 
CORPORATION, 

dissolved,  judgment  against,  when  void,  3. 
CO  TENANTS, 

purchases  by, 33. 
COUNTY, 

division  of,  what  officer  may  sell  after,  29. 

execution  against,  23. 
CURATIVE  STATUTES, 

limitations  on  operation  of,  61.  * 

validity  of  under  constitution  of  United  States  56,62, 

with  reference  to  irregular  judicial  proceedings,  57. 

with  reference  to  sales  void  for  fraud,  59. 

with  reference  to  various  Informalities  and  defects,  69, 60. 

with  reference  to  void  judicial  proceedings,  5S. 

D. 

DEATH, 

execution  issued  after  death  of  a  party,  whether  valid,  24. 

exeSntlon  tested  before  bat  Issued  after,  24. 

of  defendant  before  or  after  Jurisdiction  over  him  is  acqu'red,  8,  7«. 

of  defendant,  conveyance  by  the  shfrr'ff  afterwards,  46. 

of  minor  under  goardianship  terminates  powei'  of  court  to  order  sale  of  hl8 
property,  la.  "" 

of  sole  plaintiff  or  defendant  after  issuing  of  execution,  24o. 
DECEASED  PERSON, 

action  commenced  against,  Jn^ment  therein  is  void,  3. 

judgment  against  person  6yiifk pe7ideiite  lite,  7a, 
DECREE, 

sales  not  in  accordance  with  the  directions  of,  21. 
DEFENDANT, 

purchases  by,  83. 
DEFINITION, 

of  executioB  sale,  1. 

of  judicial  sale,  1. 

of  jurisdiction,  1. 

of  legislative  sales,  63. 

of  vested  rights,  61. 

328 


INDEX. 

DESCRIPTION, 

in  conveyances,  false  elements  may  be  rejected,  47. 

In  conveyances  must  be  applicable  to  some  definite  tract,  47. 

in  conveyances  must  not  be  equally  applicable  to  two  or  more  tracts,  47. 

in  conveyances,  sufficiency  of,  47. 

in  Judgment  and  deed  cannot  be  reformed,  55. 

In  order  of  sale,  11,  20. 

of  judgment  in  the  execution,  25. 

sufficiency  of,  in  petitions  for  orders  of  sale,  11. 
DISQUALIFIED  JUDGE, 

acts  of,  when  void,  6. 

DIVORCE  SUITS.  ,  ^  ,^ 

personal  judgments  in,  cannot  be  based  on  service  of  process  beyond  the 

state,  3. 

E. 

ELECTION',  ,^     . 

comp-lling  right  of  to  be  exercised  by  one  whose  property  was  sold  at  a 

void  sale,  60. 
to  avoid  a  sale  must  be  exercised  within  a  reasonable  time,  50c. 

EQUITY, 

cannot  aid  defective  execution  of  statutory  powers,  55. 

cannot  correct  mistakes  in  execution  of  statutory  powers,  55. 

may  compel  the  execution  of  a  proper  conveyance.  65. 
'     may  sometimes    reform  conveyances  made  by  sherifls,  administrators, 
etc.,  55. 

omissions  which  may  correct,  66. 

when  will  give  purchaser  lien  for  his  purchase  money,  52,  51?. 

when  will  subrogate  purchaser  to  claims  discharged  through  his  purchase, 
51,  53. 

EQUITY  SALES, 

caveat  emptor,  whether  the  rule  of,  48. 
ESTATES  OF  DECEDENTS, 

execution  against. 23. 

SeeEXBCDTOBS  AND  ADM INI8TBATOB8  ;   PROBkTB  SALB8. 

ESTOri'EL.  ^  .  ,     .„ 

against  adminletrafor  or  guardian  to  deny  the  tffect  of  a  sale,  50a. 
against  avoiding  a  sale  because  th»  property  was  t  xempt,  50o. 
against  avoiding  a  salefor  defects  in  the  levy, 5ea. 

against  avoiding  sales,  50.  ^      .,  , 

against  heirs  receiving  proceeds  of,  or  otherwise  being  benefited  by  a  sale. 

60a. 
against  one  who  applies  for  or  encourages  a  sale.  BOa. 
against  one  who  permits  bis  proper4y  to  be  fold  as  that  of  another,  50«. 
arising  from  laches  or  long  acijuiescence,  50a. 
by  failure  to  object  to  a  sale.  50a. 
by  receiving  proceeds  of  a  sale,  60a. 
minors  receiving  proceeds  Of  a  sale  after  attaining  their  majority,  50a. 

EXECUTION  SALES, 
adjournment  of,  .^0. 

after-acquired  title  does  not  pass  by,  41n. 
authorltyof  agent  at.  cannot  be  questioned  collaterally,  33. 
bidders,  absence  of  all  but  plalutlff,  30. 
by  whom  may  be  made,  2!).  , 

329 


INDEX. 

EXECITIOV  SALES-Continued. 

couflrmation  of,  43. 

co-tenants,  purchase  at  by  one  of  spveral,  3;^. 

curing  detects  lu  by  subsequent  legislation,  56,  62. 

defined.  1. 

effect  of  fraudulent  devices,  40,  41. 

for  too  great  an  aonount,  34. 

homesteads  acquired  under  the  laws  of  the  United  States,  35. 

interests  and  estates  in  real  property  not  subject  to,  35. 

irregularities  in  are  not  ordinarily  fatal,  21. 

made  ew  masse,  whether  void,  33. 

must  be  at  auction,  32. 

must  be  supported  by  a  valid  writ,  23. 

of  property  in  adverse  possessio'a,  38. 

of  property  not  SuLject  to  sale  are  void,  35. 

of  property  of  a  stranger  to  the  writ  are  void,  35. 

of  property  owned  by  the  state  are  void,  35. 

parties  to  the  action  may  purchase  at,  33. 

plaintiff  purchas<ng,  whether  protected  from  unrecorded  conveyances,  41a. 

plaintiff's  title,  when  passes  by,  41a. 

preemption  claims  are  not  subject  to,  35. 

rights  of  purchaser  when  sale  is  void,  51,  52. 

secret  equities  cannot  be  urged  against,  41a. 

strangers  to  the  suit,  title  of,  is  not  devested  by,  41a. 

to  or  for  officer  conducting  the  sale,  33. 

under  writ  insufficient  in  form,  25. 

under  writ  Issued  after  abolition  of  the  court,  23,  note. 

under  writ  i.'^sued  after  death  of  a  party,  24. 

under  writ  issued  at  an  improper  time,  24. 

under  writ  issued  before  judgment  is  rendered,  24. 

under  writ  issued  on  satiflied  judgment,  23,  note. 

under  writ  issued  on  transcript  of  justice's  judgment,  24. 

unrecorded  conveyances  and  incumbrances,  when  may  not  be   asserted 
against,  41a. 

variances  not  fatal  to,  25. 

when  may  be  made,  30. 

where  may  be  made,  31. 

when  there  are  no  bystanders,  32. 

whether  void  for  want  of  notice,  28. 

who  may  purchase  at,  33. 

without  inquisition  or  appraispni<int,  27. 

without  issue  of  any  writ  are  void,  23. 

without  levy,  26. 
EXECUTION.  WRITS  OF, 

against  a  county  or  state,  23. 

against  the  estate  of  a  decedent,  23. 

command,  omission  of  words  of,  or  error  In ,  25. 

death  of  sole  plaintiff  or  defendant  after  ijsuing  of,  21o. 

description  in,  of  the  judgment,  25. 

directed  to  wrong  officer,  26. 

form  of,  25. 

in  personam,  when  not  valid,  23. 

issued  by  officer  not  authorized  to  is^ue,  23. 

issued  by  officer  whose  term  has  expired,  23. 

issued  by  one  court  on  the  judgment  of  another,  23. 

judgments  which  will  support,  23. 

loss  or  suspension  of  right  to  enforce  regularly  issued,  24a. 

530 


INDEX. 

EXECITION',  WRITS  OF— Continued. 

necessity  for,  23. 

on  order  that  money  be  paid  into  court,  26. 

property  not  subject  to,  a5. 

seal,  omission  of,  25. 

signature,  omission  of,  25. 

style  of,  error  in  or  omission  of,  25. 

variance  in,  25. 

when  may  issue,  2i. 
EXEMPT  PROPERTY, 

sale  of,  when  void,  35, 


FORECLOSURE, 

deficiency  judgment  in,  must  be  supported  by  service  of  process  within  the 
state,  3. 
FORECLOSURE  SALES, 

adverse  and  paramount  titles,  when  affected  by,  ia. 
FOREIGN  GUARDIAN  OR  ADMINISTRATOR, 

sales  by  are  generally  unauthorized  and  void,  10. 

FORMALITY, 

which  may  be  dispensed  with  by  subsequent  statute,  60. 

FRAUD  OF  Pl'RCIIASERS, 

confirmation  of  sale  does  not  preclude  Irquiry  as  to,  U. 

destroys  their  equitable  right  to  subrog*tion,  54. 

not  to  injure  innocent  persons, 41. 

sale  void  for  cannot  be  validated  by  legislature,  59. 

whether  it  makes  their  title  void  or  voidable  merely,  40. 
FR  A  I' DILENT  TRANSFERS, 

administrator's  or  executor's  sale  of  property  which  has  been  subject  to,  9a. 

G. 

GUARDIAN, 

acting  also  as  administrator,  17. 

ad  litem,  failure  to  appoint,  19a. 

application  in  wrong  county  for  order  to  sell,  10. 

appointment  of,  when  void,  17. 

cannot  represent  conflicting  interests,  17. 

cannot  waive  service  of  citation  on  his  wards,  17. 

consent  of  to  sales,  17. 

failing  to  give  bond,  bat  accounting  for  proceeds,  22. 

foreign,  sale  by,  10. 

notice  of  application  by,  for  orders  of  sale,  omission  of,  I'l. 

sale  by.  said  to  be  in  rrm,  15. 

sale  to,  or  in  interest  of,  33. 

sales  by,  are  sustained  against  irregularities  not  involving  bad  faith,  21. 

II. 

UEIRS  AND  DEVISEES, 

constitutionality  of  special  statutes   authorizing  sales   of  their  property, 
63,72. 

331 


INDEX. 

HKIRS  AND  DEVISEES-Contlnued. 

general  statutes  authorizing  tbe  sale  of  property  to  propaote  tbe  intereBte 
of,  72. 

nature  pf  their  interests,  56,  67. 

title  vests  In.  on  death  of  ance:)tor,  72. 
JIOMESTBADS, 

judicial  sales  of,  may  be  valid,  85. 

of  insane  person,  statute  authorizing  the  sale  of,  66. 

probate  sales  of,  9a. 

sale  of,  when  void,  35. 

I. 

INCOMPETENT  PERSONS, 

legislature   may   authorize  sale   asd   conveyance   of   their  property   by 
special  statutes,  66. 
INFANTS, 

special  statutes  authorizing  the  sale  of  the  property  of,  66. 
INQUISITION, 

sale  without,  held  void,  27. 
IRREGUL&BITIES, 

after  acquiring  Jurisdiction,  19a. 

In  appointing  or  failing  to  appoint  guardians  ad  lilem,  19a. 

orders  of  sale,  cure  of  by,  20. 

IRREGULARITIES  IN  SALES, 
general  effect  of,  21. 
made  fatal  >y  statute,  22. 
what  cured  by  confirmation,  25. 
what  cured  by  special  curative  statutes,  57,  59,  60. 

J. 

JUDICIAL  PROCEEDINGS, 

acts  interfering  with  retrospectively,  67. 

acts  ratifying  Irregular,  57. 

acts  ratifying  void,  58. 

are  void  If  judge  has  bo  authority  to  act,  6. 

are  void  unless  court  has  juMsdiotion,  2,  3. 

collateral  attacks  upon,  6, 14,  20. 

effect  of,  when  void,  2. 

jurisdictional  inquiries  concerning,  8. 
JUDICIAL  SALES, 

at  what  place  may  be  made,  31. 

at  what  time  may  be  made,  30. 

by  wnom  may  be  made,  29. 

dt-fioed,  1. 

effect  of  want  of  notice  of,  28. 

failure  to  make  at  auction,  32. 

for  too  great  an  amount,  34. 

irregularities  in,  not  usually  fatal,  21. 

must  be  confirmed  by  court,  43. 

right  of  purchasers  at  void,  to  subrogation,  51  to  63. 

special  statutes  confirming  and  validating,  56  to  62. 

to  or  for  persons  incompetent  to  bid,  33. 

under  powers  in  wills,  1. 

whether  must  be  ordered  by  the  court,  1. 

332 


INDEX. 

JUDGMENT, 

against  deceased  person,  3,  'a. 

barred  by  statutes  of  limitation,  sale  under  is  void,  7a. 

before  time  to  appear  has  expired  is  not  void,  5. 

dormant,  execution  upon,  24. 

execution,  wben  will  supiiort,  C3. 

given  at  a  time  or  place  not  authorized  by  law,  7. 

in  excess  of  the  jurisdiction  of  tbe  court,  ia. 

not  yet  rendered,  salovunder,  23,  note. 

party  not  before  tlie  court  is  not  bound  by,  ia. 

property  not  before  the  court  is  not  bound  by,  ia. 

recovery  of  second  judgment  baaed  on,  whether  terminates  right  to  execu- 
tion, 'a. 

satisfied,  sale  under,  23,  note. 

satigfied,  sale  under  is  void,  la. 

vacated  or  reversed, 23. 

variance  between,  and  execution,  25. 
JUBISDICTION, 

absence  of  appearing  by  the  record,  8. 

by  attachment,  when  acquired  and  the  effect  of,  3. 

deceased  persons  cannot  be  subject  to,  3. 

defined,  2. 

effect  of  want,  2. 

finding  of  court  in  favor  of  Its  own  jurisdiction,  4. 

general  rules  governing  inquiries  concerning,  8. 

how  acquired  in  proceedings  in  probate,  5. 

how  acquired  in  proceedings  in  rem,  5. 

how  acquired  over  defendants,  5. 

how  acqalred  over  plaintiffs,  5. 

how  obtained.  3,  5. 

in  foreclosure  suits  to  determine  adverse  claims,  ia. 

instances  of  want  of,  i*  probate  courts,  4. 

judgments  and  orders  in  excess  of,  4a. 

loss  of,  by  action  of  court  of  concurrent  jurisdiction,  7. 

loss  or  suspension  of,  7. 

of  person  in  one  capacity  does  not  bind  him  in  another,  3. 

of  the  person,  bow  acquired,  a. 

over  non-residents,  3. 

over  property  in  another  state,  4. 

presumptions  concerning,  8. 

proceedings  void  for  want  of  cannot  be  validated,  68. 

unconstitutional  statutes  cannot  confer,  3. 


LACHES, 

la  applying  for  orders  of  sale,  96. 

whether  estop  one  from  dtnylng  the  validity  of  a  sale,  50a. 

LEGISLATIVE  SALES, 
by  administrators,  67. 
by  guardians,  66. 
by  peraoQ  other  than  guardian  while  there  la  a  regularly  appointed  guard- 


by  trustees,  foreign  administrators,  and  others,  68. 
cases  where  they  cannot  be  authorized,  72. 
cooatitutlonallty  of  atatutesauthorizing,  efiSrmed,  66. 

3;i3 


INDEX. 

LECaSLATlVE  SALES-Contlnned. 

constitutionality  of  statutes  authorizing,  denied,  65. 

described,  6.H, 

general  nature  of  statutes  authorizing,  63. 

general  remarks  conceruing  power  to  authorize,  64. 

misapplication  of  proceeds  of,  70. 

to  pay  specific  debts,  69. 

LEGISLATURE, 

power  to  pass  special  statutes  authorizing  sales,  63,  72. 
power  to  validate  void  sales,  56  to  62. 
restraints  upon  powers  of,  56. 

LEVY, 

defects  in,  effpct  of,  26. 

sale  without,  26. 

under  execution,  when  unnecessary,  26. 


M. 

MARKETABLE  TITLE, 

refusal  to  couflnu  sale,  because  of  want  of,  48. 

MINORS, 

estoppel  against  because  of  their  receiving  the  benefit  of  a  sale,  50a. 
estoppel  against  when  the  proceeds  of  a  sale  are  invested  in  property  re- 
tained by  them,  50a. 
notice  to,  of  applications  by  guardian  for  sales  of  property,  15. 
receiving,  after  coming  of  »ge,  the  proceeds  of  void  sales,  50a. 
special  statutes  authorizing  sales  of  lands  of,  66. 

MORTGAGE, 

retormiug  after  foreclosure  sale,  55. 


N. 

NON-RESIDENTS, 

attachment,  jurisdiction  over,  to  what  estent  may  be  acquired  by,  3. 
grants  of  admiQistration  upon  i  states  of,  4. 
judgments  against,  when  void,  3. 

property  rights  of,  extent  to  which  may  be  affected  by  service  of  process 
beyond  the  state,  3. 

KOTIUE  OF  APPLICATION  To  SELL, 
absence  of,  is  generally  fatiU,  16. 
absence  of,  is  not  fatal  in  some  states,  15. 
cannot  be  vaived  by  a  guardian,  17. 
cannot  be  waived  by  a  minor,  17. 
defect  in  form  or  mode  of  service,  18. 
guardian's  sale,  omission  of  in,  15. 
legislature  may  dispense  with,  15. 

manner  of,  must  be  that  directed  by  law  or  the  order  of  the  court,  18. 
must  be  given  for  the  time  prescribed  by  law,  19. 
return  day  of,  fixing  of  at  too  early  or  too  late  a  date,  18. 

NOTICE  OF  SALE, 

absence  of  and  defects  in,  28. 

'?  •?  A 


INDEX. 

O. 

OATH. 

failure  of  administrator  to  take  before  selling,  22. 
ORDERS  OF  SALE. 

absence  of,  isfatal,  20. 

are  void  if  granted  on  insufficient  petition,  11. 

are  void  if  granted  without  a  petition,  11. 

are  void  if  granted  without  proper  citation,  17  to  19. 

cannot  be  collaterally  attacked  for  error,  H,  20. 

conclusive  as  adjudications,  20. 

contents  of,  20. 

debts  authorizing  the  sale  are  conclusively  established  by,  20. 

describing  lauds  in,  11,  20. 

effect  of,  as  adjudications,  20. 

irregularities  are  cured  by,  20. 

liability  of  property  to  be  sold,  whether  established  by,  20. 

nature  of  proceedings  to  obtain,  10. 

recitals  in,  conclusiveness  of,  20. 

to  be  set  forth  or  recited  in  deeds,  46. 

when  unnecessary,  9,  20. 

who  may  petition  for,  10. 


PARLIAMENT, 

supreme  authority  of,  64. 
PARTIES, 

acting  in  one  right  are  not  bound  by  a  judgment  against  them  in  another 
right,  3. 

claiming  property  in  two  or  more  capacities,  3. 

jurisdiction  over,  how  acquired,  H 
PARTITION, 

constitutionality  of  general  and  special  laws  authorizing,  7i. 

of  property  owned  partly  by  a  decedent  and  partly  by  a  third  person,  ia. 
PAYMENT, 

Of  the  bid,  conveyance  without,  whether  void,  416. 
PERSONAL  PROPERTY, 

deficiency  of,  es-seutial  to  authorize  sale  of  realty,  11. 

must  be  present  at  the  sale,  .^1. 

sale  of,  without  leave  of  court,  9. 
PETITION  FOR  ORDERS  OF  SALE, 

allegations,  what  should  contain,  l.S. 

authority  of  person  presenting,  whether  may  be  questioned  collaterally, 
10. 

collateral  attack  upon  dlff>^r8  from  attack  by  demurrer,  13. 

condition  of  property,  failure  to  allege,  13. 

condition  of  real   property,  difference   In   statements   In  nppliculions  by 
guardians  and  In  those  by  administrators,  l.S. 

condition  of  real  property.  Imperfect  statements  c-f,  13. . 

condition  of  real  property,  Bufllcient  statements  of,  13. 

defcrlptlon  of  property  In,  11. 

description  of  rcHl  property  In,  13. 

guardian  ad  tiftm,  failure  to  appoint  before  hearing  of,  V\i. 

Insultlcient  older  of  sale  based  upon,  is  void,  11. 

33.3 


INDEX. 

PETITION  FOR  ORDERS  OF  SALE-Continued. 
liberally  construeU,  13. 
may  refer  to  other  papers  on  file,  13. 
must  be  presented  by  proper  person,  10. 
H^easity  (or,  11. 
need  not  be  true,  H. 
notice  of  must  be  given,  17. 

notice  of  must  be  given  for  the  time  prescribed,  19. 
notice  of  must  be  given  in  mode  prescribed,  18. 
omitting  to  describe  all  decedent's  real  property,  13. 
orderon  Insufficient  Is  void,  11. 
order  without  is  void,  11. 

personal  property.  Inadequacy  of  should  be  alleged  In,  13. 
power  of  sale  in  will,  whether  must  be  denied  In,  11. 
proceedings  on,  said  to  be  in  personam,  16. 
proceedings  on,  said  to  be  in  rem,  15. 
reference  to  other  papers,  how  to  be  made,  13. 
statutory  provisions  concerning,  12. 
sufficiency  of,  11. 

verification  of,  whether  Indlapenaable  to  Valid  sale,  11. 
what  should  state,  U. 

PLACE  OF  SALE, 
^   effect  of  sale  at  another  place,  31. 

PLAINTIFF, 

purchases  by,  33. 
PO8SESSI0X, 

delivery  of  to  purchaser  is  not  indispensable,  ilb. 
POWERS  OF  SALE  IN  WILLS, 

foreign  executor,  whether  may  execute.  9. 

implied  when,  9. 

presumption  in  Support  of,  9. 

sales  made  under,  when  void,  9. 

who  may  execute,  9. 
PRE  EMPTIOK  CLAIMS, 

execution  sales  of  are  void,  85. 
PRESUMPTIONS. 

from  the  confirmation  of  a  sale,  44. 

In  support  of  sales  under  powers  in  wills,  9. 

of  confirmation  of  sales,  48. 

of  filing  of  bond  by  administrator  or  executor  before  making  a  sale,  22. 

of  jurisdiction,  4,  8. 

of  the  execution  of  oonveyances  pursuant  to  an  execution  or  judicial  sale, 
46. 

that  officer  did  his  duty,  8. 

that  paper  not  found  among  the  files  is  lost,  8. 
PRIVATE  SALES. 

when  void,  32. 

PROBATE  COURTS, 

findings  of  jurisdictiOB.  effect  of,  4. 

how  may  acquire  jurisdiction  over  perssos,  5. 

instances  of  want  of  jarisdictloa,  4. 

jurisdiction  of,  not  presumed,  4. 

loss  of  jurisdiction  to  proceed.  7. 

nectsslty  of  keeping  up  Jurlsdlcllonal  ioquirlea  concerning,  9. 

336 


INDEX. 

PROBATE  PROCEEDINGS, 

are  void  if  supposed  decedent  is  living,  1. 

are  void  if  taken  in  the  wrong  county,  i. 

are  void  unless  jurisdiction  appears,  4. 

are  void  where  there  is  no  jurisdiction  over  the  subject  matter,  i. 

have  no  effect  beyond  the  state,  i. 

jurisdiction  over  persons,  5. 

must  be  based  on  sufficient  petition,  11  to  13. 

must  be  conflruned,  43. 

notice  to  persons  in  interest  must  be  given,  16. 

presumption  of  jurisdiction,  8. 

said  not  to  be  in  rem,  16. 

said  to  be  in  rem,  15. 

when  protected  from  collateral  assault,  4. 

PROBATE  SALES, 

are  restricted  to  the  interests  of  the  decedent  prior  to  his  death,  9a. 

are  void  if  made  under  order  of  court  of  another  state,  4. 

are  void  if  not  authorized  by  the  court,  9. 

are  void  if  petitioned  for  by  person  not  authorized  to  petition,  10. 

are  void  if  the  court  has  no  jurisdiction  of  the  subject  ii.Mitter,  4. 

are  void  if  the  estate  is  not  subject  to  the  probate  act,  i. 

are  void  if  the  petition  was  insufficient,  11. 

are  void  if  the  supposed  decedent  is  living,  4. 

are  void  if  there  was  no  petition  for,  11. 

are  void  it  there  was  no  valid  grant  of  administration,  2,  7. 

by  Whom  may  be  made,  29. 

during  the  pendency  of  an  appeal,  'a. 

effect  of  confirmation  without  notice,  42. 

effect  of  fraudulent  practices,  40. 

effect  of  misappropriation  of  proceeds  of  sale,  41. 

effect  of  secret  frauds,  41. 

Inches  in  applying  for,  whether  may  make  void,  86. 

made  at  an  improper  place,  .=^1. 

made  at  an  iu:proper  time,  30. 

made  for  too  great  a  sum,  34. 

made  iu  private,  32. 

made  to  person  not  allowed  to  bid,  33. 

necessity  of  confirmation,  43. 

of  equitable  estates  and  interests,  9a. " 

of  homestead  and  other  exempt  property,  9a. 

of  1  inds  patented  to  the  heirs  of  the  decedent,  9n. 

of  property  adversely  held,  9a. 

of  property  conveyed  by  decedent  in  his  lifetime,  4. 

of  property  held  in  trust,  9a. 

of  property  in  adverse  possession,  38. 

of  property  not  ordered  to  be  sold  are  void,  35. 

of  properly  not  subject  to  sale  are  void.  35. 

presumption  of  confirmation,  43. 

property  t-ubject  to,  9«. 

report  of,  defects  in,  41rf. 

report  of,  statutory  provisions  r.'gardinn,  are  directory,  41rf. 

right  of  purchaser  to  subrogation,  51  to  53. 

statutes  validating  Invalid,  56  to  62. 

to  pay  debts  satisfied  or  barred  by  statute  of  limitations,  la,  9i>. 

void  for  failure  of  Hdiiiiuistrator  to  give  sale  bon<l,  22. 

void  for  failure  of  administrator  to  take  oatli  before,  22. 


(22) 


3o7 


INDEX. 

rUOBATK  SALKS-C'ontinutd. 

void  for  want  oT  appraisement,  '27. 

void  for  want  of  notice  of  sale,  28. 

void  for  want  of  notice  to  heirs  of  application  for  order  of  sale,  15  to  19. 
PROCEEDS  OK  SALE, 
.    purchaser  not  hound  to  see  to  proper  application  of,  41,  70. 

PROCESS, 

presumption  of  the  exlatenoe  of.  or  of  tlie  correcting  of  defects  in,  8. 

service  of  must  be  in  the  manner  authorized  by  some  law,  3. 

service  of  must  be  made  within  the  state,  to  support  a  personal  judgment,  3. 
rROl'ERTY, 

administrators  and  executors,  wliat  may  sell,  9a. 

adversely  held,  probate  sales  of,  Oa. 

equitable  estates,  probate  sales  of,  9a. 

fraudulently  transferred  by  a  decedent,  probate  sale  of,  9a. 

situate  in  another  county  or  district,  probate  sale  of,  9(t. 
PUBLIC  LANDS, 

patented  to  the  heirs  of  a  decedent  cannot  be  SDld  by  his  executor  or  ad - 
miuistrator,  9a. 

PUr,LIC  USE, 

sales  of  property  dedicated  to,  are  void,  35. 
PURCHASERS, 

at  void  sales,  need  not  pay  their  bids,  48. 

cannot  resist  action  for  bid  because  of  failure  of  title,  48. 

failure  of  title,  relief  of,  upon ,  40. 

fraud  of,  destroys  right  to  subrogation,  54. 

fraudulent  practices  by,  40. 

knowledge  by,  of  defects  in  the  title,  4^. 

not  affected  by  secret  frauds,  41. 

not  bound  to  see  to  application  of  proceeds  of  sale,  41. 

release  of  after  the  confirmation  of  the  sale,  48. 

release  of,  because  the  title  is  not  marketable,  49. 

right  to  accounting  on  equitable  principles,  53. 

right  to  hold  lands  until  purchase  money  is  refu  ided,  49^,  53. 

right  to  recover  money  paid,  49. 

right  to  subrogation  denied,  51. 

right  to  subrogation  sustained,  52,  53. 

right  to  urge  estoppel  arising  from  ratification  ,  50. 


R. 

RATIFIOATION, 

of  sales  by  failure  to  exercise  right  of  reimbursing  purchaser   for   his  liens 

discharged  by  his  purchase,  50. 
of  sales  never  approved  by  court,  iS. 

of  sales  not  in  conformity  to  the  directions  of  the  order  or  decree,  21 . 
of  void  sales,  50. 

of  void  sales  by  acquiescence,  50. 
of  void  sales  by  curative  acts,  56,  62. 
of  void  sales  by  minors,  50. 

of  void  sales  by  receiving  surplus  proceeds,  50. 
RECEIVER, 

consent  cannot  confer  power  to  appoint,  4a. 
jurisdiction  to  appoint,  collateral  attack  upon,  4a. 

338 


INDEX. 

RECEIVER -Continued. 
salts  by,  when  void,  4a. 
void  appoiniment  of ,  4rt. 

RESCISSION, 

of  sale  alter  eonfirnuUiou,  4S. 

EErOKMING, 

mnrtg:i£?e9  after  foreclosure,  55. 
sheriff's  deeds,  55. 

REMAINDER, 

author  zirg  sale  of,  without  cause  or  the  cojoscnt  of  tlie  owner,  71. 
statule  setbiug  to  validate  void  sale  of,  58. 

REl'ORT, 

of  sales,  defects  in,  Ud. 
EETROSPECTIVE  LAWS, 

constitutionality  of,  54. 

RETURN, 

defects,  variances  or  omissions  in,  41. 

of  shf  r  its  or  constables,  omissions  or  misstatements  in,  41c. 

RETURN  DAY, 

levy  after,  '^0. 

sale  after,  30. 
RETURN  OF  SALES, 

couflruiation  cures  want  cf  veriflc&ticn,  44. 


SALE, 

of  different  rr  If  ss  int erf  st  than  t bat  htld  ly  dtfendaut,  36. 
of  property  not  subject  to,  35. 
of  undesignated  part.  31. 

subject  to  liens  whitli  do  not  exist,  36. 

SCI9E  FACIAS, 

alter  death  of  a  party,  (fffct  of  i  sec  ut ion  isf^ufd  wi'hout,21. 
(xecutiou  without,  when  irregultr  and  when  void,  24. 

SEAL, 

omission  of,  from  execution,  25. 

SECURITY, 

failure  to  give  addilioral,  effect  of,  22. 

SHERIFF, 

deeds  of,  reformat  on  of,  .")5. 

deputy  may  act  for,  in  making  sales,  29. 

discjUttiitted,  sales  by,  whether  void,  29. 

executing  writ  directed  to  another,  29. 

executing  writ  to  which  he  is  pHriy,  29. 

sales  made  of  property  outside  of  his  couuty  are  void,  29. 

See  Conveyances. 

of  onicer  issuing  writ,  omission  of,  25. 

STECIAL  STATUTES, 

ecrfliming  invalid  salf  s  ar  d  prncef  Oh  gs,  CO.  C2. 

for  compulsory  sale  of  Undn,  ohj-ctlona  to,  65. 

for  aalu  of  UnUs  of  minors  pioliiijitcd  In  tome  states,  61. 

3;3'j 


INDEX. 

SPECIAL  STATrXES-Contluuecl. 
See  Constitutionality. 
See  UURATivK  Statutes. 
See  Legislativk  Sales. 

STATUTE  OF  FRAUDS. 

compliuuce  witli,  what  sufHcient,  416. 
STATUTE  OF  LIMITATIONS, 

does  not  run  against  allowed  claim,  96. 

sale  of  property  to  pay  debts  barred  by,  96. 

sale  under  judgment  barred  by,  la. 

special  against  recovery  of  property  sold  at  judicial  sales  cannot  apply 
against  strangers  to  the  suit,  5S«. 

special  against  recovery  of  property  sold  at  judiciil  sales,  construction 
of,  58a. 
SUDROGATION, 

Chancery  sales,  purchasers  at,  when  entitled  to,  52. 

execution  sales  are  within  the  benefit  of  the  rule  of,  52. 

fraud  of  purchaser,  whether  deprives  of  right  to,  51. 

ignorance  of  purchaser  whether  essential  to  right  to,  5L 

probate  sale^,  where  the  proceeds  are  applied  to  satisfy  liens  and  other 
claims,  53. 

purchaser's  right  to,  denied,  51. 

purchaser's  right  to,  sustained,  52,  53. 

to  liens  paid  as  a  condition  precedent  to  the  levy  of  an  execution ,  52. 
SUNDAY, 

judgment  rendered  on,  is  void,  7. 


TIME, 

when  execution  may  issue,  24. 

when  sale  may  be  made,  30. 

within  which  liceHse  to  sell  real  property  miy  be  granted,  96. 
TRUST  ESTATES, 

administrator  or  executors  cannot  sell,  9a. 
TRUSTEES, 

execution  sales  against,  when  void,  35,  note. 

purchase  by,  at  their  own  sales,  33. 

special  acts  authorizing  sales  by,  68. 


VARIANCE, 

between  judgment  and  execution,  25. 
VERIFICATION, 

of  petition  for  order  of  sale,  omission  of,  11. 

of  return  of  sales,  omission  of,  14. 
VESTED  BIGHTS, 

not  to  be  devested  by  legislation,  56. 

what  are,  61. 


VOID  JUDGMENTS, 

sales  under,  effect  of,  2,  and  note. 


340 


INDEX, 

VOID  SALES, 

are  those  based  on  void  judgments  or  orders,  1. 

are  those  made  in  probate  without  valid  grant  of  administration,  2. 

are  those  made  where  court  had  uo  jurisdiction,  3,  i. 

are  those  made  without  authority  from  court,  9. 

classified  and  described,  1. 

not  validated  by  order  of  confirmation,  44. 

ratification  of,  50. 

right  of  purchaser  at,  to  recover  money  paid,  49. 

right  of  purchaser  at,  to  resist  payment  of  bid,4S. 

right  of  purchaser  at,  to  subrogation,  51,  53. 

statutes  validating,  56,  62. 

See  Curative  Statdtes. 

See  ExKCDTioN  Sales. 

See  JcDiciAL  Salks. 

See  Legislative  Sales. 

See  PaoBATB  Sales. 


341 


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